A2L Using and Creating Litigation Graphics To Persuade

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Using &
Creating
Litigation
Graphics to
Persuade
May 10, 2013
Jury Consulting | Litigation Graphics | Trial Technology
Using & Creating Litigation Graphics to Persuade
Table of Contents
Introduction to A2L Consulting........................................................................................................................................................................ 4
Thank you for downloading Enjoy your A2L Consulting eBook ................................................................................................................... 5
14 Places Your Colleagues Are Using Persuasive Graphics That Maybe Youre Not ................................................................................... 6
Litigation Graphics, Psychology and Color Meaning ...................................................................................................................................... 8
Information Design and Litigation Graphics .................................................................................................................................................. 11
7 Ways to Prepare Trial Graphics Early & Manage Your Budget ................................................................................................................. 16
In Trial Presentation - A Camel is a Horse Designed by Committee ............................................................................................................ 19
5 Problems with Trial Graphics ..................................................................................................................................................................... 20
3 Ways to Handle a Presentation-Challenged Expert Witness .................................................................................................................... 22
10 Reasons The Litigation Graphics You DO NOT Use Are Important ........................................................................................................ 24
Teaching Science to a Jury: A Trial Consulting Challenge ........................................................................................................................... 26
Trial Graphic: Could a Wall Chart Change How Litigators Prep Cases? ...................................................................................................... 29
Explaining Patent Claim Language in Patent Litigation ............................................................................................................................... 31
Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias ......................................................................................................... 33
Dont Get Too Cute With Your Trial Graphics ............................................................................................................................................... 36
Beyond PowerPoint: Trial Presentations with Prezi and Keynote ................................................................................................................ 38
Why Patent Trial Graphics Matter-And Not Just for Confused Jurors .......................................................................................................... 40
Top 5 Trial Timeline Tips .............................................................................................................................................................................. 42
Antitrust Litigation Graphics: Monopoly Power and Price Fixing .................................................................................................................. 44
Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic ................................................................................................... 48
Presentation Graphics: Why The President Is Better Than You .................................................................................................................. 51
Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer) ............................................................................................... 56
Patent Comes Alive! Turning Patent Drawings into Trial Presentations ....................................................................................................... 58
Automobile Litigation: Patent Infringement and Product Liability ................................................................................................................. 61
Trial Presentation Too Slick? Here's Why You Can Stop Worrying ............................................................................................................. 64
Power Plant Legal Animation and Effective Information Design................................................................................................................... 66
Power Plant Legal Animations and Effective Information Design (pt. 2) ...................................................................................................... 67
A2L Consulting | A2LC.com
Learn About Nuclear Power Plants Through Litigation Graphics ................................................................................................................. 70

The Redundancy Effect, PowerPoint and Legal Graphics........................................................................................................................... 72
Semiconductor Patent Litigation Graphics (What is a MOSFET?) ............................................................................................................... 74
Patent Infringement Trial Graphics: Illustration + PowerPoint ...................................................................................................................... 75
Trial Exhibits: Using the Document Call-Out to Persuade ............................................................................................................................ 77
Trial Exhibits: Antitrust, Pharmaceuticals & Hatch-Waxman Litigation ......................................................................................................... 78
Memorable Markman Exhibits and Patent Litigation Trial Graphics ............................................................................................................. 80
Trial Consulting: Using Trial Exhibits in Reinsurance Litigation ................................................................................................................... 82
Trademark Litigation Graphics: Making Your Best Visual Case ................................................................................................................... 84
Legal Animation: Learn About the Four Types Used in the Courtroom ........................................................................................................ 86
Securities Litigation Graphics and Juror Communication ............................................................................................................................. 89
Environmental Litigation Demonstrative Exhibits and Trial Graphics ........................................................................................................... 92
Defeating Class Certification with Trial Presentation Graphics .................................................................................................................... 95
Construction Litigation Graphics: Construction Delay or Defect ................................................................................................................... 97
6 Ways to Convey Size and Scale to a Jury ............................................................................................................................................... 100
Trial Presentation Services: Not Just for Big Defense Teams .................................................................................................................... 104
Aviation Litigation Graphics and Effective Demonstrative Evidence .......................................................................................................... 108
Trial Presentation Graphics: Questioning Climate Change in Litigation ..................................................................................................... 110
Trending: Mock Trial Testing of Litigation Graphics AND Arguments ........................................................................................................ 113
Demonstrative Evidence & Storytelling: Lessons from Apple v. Samsung ................................................................................................. 115
Antitrust Litigation Graphics: Explaining Complex Information Simply ....................................................................................................... 121
6 Studies That Support Litigation Graphics in Courtroom Presentations ................................................................................................... 124
Litigation Support: Making Sense of the Statistically Significant ................................................................................................................ 126
9 Trial Graphics and Trial Technology Budget-Friendly Tips...................................................................................................................... 132
4 Tips for Using Trial Graphics in Motions and Briefs................................................................................................................................. 135
12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) .......................................................................................................... 140
Using Trial Graphics & Statistics to Win or Defend Your Case .................................................................................................................. 146
Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips ............................................................................................................ 153
Printed Trial Boards Making a Comeback? It's Courtroom Deja Vu! .......................................................................................................... 156
Demonstrative Evidence: Simplifying Technical Cases or Patent Cases ................................................................................................... 158
Courtroom Exhibits: Analogies and Metaphors as Persuasion Devices ..................................................................................................... 161

Courtroom Graphics in Labor and Employment Cases .............................................................................................................................. 165
Banking Litigation Courtroom Presentations .............................................................................................................................................. 170
Perfecting the Patent Tutorial for Your Judge............................................................................................................................................. 174
Litigation Graphics in White Collar Cases .................................................................................................................................................. 177
3D Printing to Change Courtroom Demonstrative Evidence ...................................................................................................................... 180
Explaining a Complicated Process Using Trial Graphics............................................................................................................................ 186
3 Styles of Document Call-outs Used at Trial ............................................................................................................................................. 190
The Best Ways to Use Calendars in Legal Graphics.................................................................................................................................. 193
5 Tips for Using TrialDirector and Trial Technicians Effectively ................................................................................................................. 196
Making Good Use of Trial Director & Demonstratives in an Arbitration ...................................................................................................... 197
Courtroom Presentations in E-Discovery Disputes..................................................................................................................................... 199
New Study: A Graphically Immersive Trial Presentation Works Best ......................................................................................................... 202
Who Are the Best Demonstrative Evidence Firms?.................................................................................................................................... 203
5 Inspiring Information Design/Data Visualization Sites for Lawyers ......................................................................................................... 205
Lists of Analogies, Metaphors and Idioms for Lawyers .............................................................................................................................. 207
Demonstrative Evidence: Using Maps as Courtroom Exhibits ................................................................................................................... 209
12 Questions to Ask When Hiring a Trial Graphics Consultant .................................................................................................................. 212
Sample One-Year Trial Prep Calendar for High Stakes Cases .................................................................................................................. 214
Contacting A2L Consulting ......................................................................................................................................................................... 217
Introduction to A2L Consulting

A2L Consulting (formerly Animators at Law) offers litigation consulting services to law firms and
corporations worldwide. The firm's services include jury consulting, the consultative design of litigation
graphics and deployment of pre-trial technology, courtroom electronics and the personnel to support
that technology.
A2L headquarters is in Washington, DC and it has personnel or a presence in New York, Miami,
Houston, Chicago, Los Angeles and San Francisco. The firm's work routinely takes it to those cities
plus Boston, Newark, New Jersey, Wilmington, Delaware, Philadelphia, Virginia, Maryland, Atlanta,
Dallas, Phoenix and London, England. Since 1995, A2L Consulting has worked with litigators from
100% of top law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.
A2L Consulting was recently voted Best Demonstrative Evidence Provider by the readers of
LegalTimes and a Best Demonstrative Evidence Provider by the readers of the National Law Journal.
Litigation Consulting Services

Litigation Graphics, Demonstratives, Physical Models and Animation for Litigation and ADR
Sophisticated PowerPoint
Presentations
Boards
Document Call-outs
Printed Large Format
2-D and 3-D Animation
Physical Models
Mock Trials, Focus Groups and Jury Consulting

Focus Group
Witness Preparation
Juror Questionnaires
Jury Selection
Post-Trial Interviews
Opening & Closing Statements
Trial Technicians, Courtroom Set-Up and Hot-seat Personnel

Trial Software
Video Encoding
Document Coding
Equipment Rental and Setup
Video Synchronization
E-Briefs
Scanning and Coding
Configure Database
Digitally Convert Paper Briefs
Citations and Hyper-Linking
Provide DVD, Flash Drive or iPad
www.A2LC.com | 800.337.7697 | www.LitigationConsultingReport.com
Thank you for downloading Enjoy your

A2L Consulting eBook
Twenty years ago, I taught myself animation and litigation graphics while in law school. I was drawn to
the field, and it turns out that demonstrative evidence design comes naturally to me.
Once I started A2L Consulting in 1995 (then known as Animators at Law), I found that when litigators
explain a difficult-to-explain concept to me, I see a number of pictures in my mind's eye. They arrive a bit
like an a la carte menu of visual options.
In the decades since A2L's founding, I have been lucky to have a number of exceptionally talent people
work at the firm. Some are jury consultants, others are trial technicians and many have been litigation
graphics experts. As a national firm who has now worked with most major law firms, we have been lucky
to create litigation graphics for many of the world's best litigators
Many call litigation graphics by other names like trial graphics, demonstrative evidence, trial exhibits,
courtroom graphics, courtroom animations or even scale models. Together, they represent a visual
medium that scientific studies suggest must be used by litigators who are in front of judges and juries if
they are to persuade.
This book pulls together A2L Consulting's best articles on litigation graphics. Read this book, learn its
lessons and you will be well on your journey to becoming a litigation graphics expert.
Enjoy it, share it and please send me your feedback. By all means, let me know if you have any
questions about a case or other persuasion challenge you are facing. I'd be happy to speak with you.
Sincerely,
Kenneth J. Lopez, J.D.

Founder & CEO
A2L Consulting
lopez@a2lc.com
www.A2LC.com
14 Places Your Colleagues Are Using

Persuasive Graphics That Maybe Youre Not
By Ken Lopez, Founder and CEO, A2L Consulting
People often focus on the use of trial graphics
in, well, trials. And theres no doubt that thats
where persuasive graphics, presentations, and
exhibits are most often used. But you might be
surprised to see how many other places are
appropriate for the use of litigation style
graphics. Here are 14 good examples.
1. In motions: A juror will never see them
but a judge will. For more on this topic,
read our article on using litigation and
trial graphics in motions.
2. In briefs: Generally, trial graphics are used for perfectly normal reasons in briefs. Occasionally,
an attorney will use them for the sake of humor or just to prove a point. See this comical
courtroom brief.
3. In depositions: One of our clients recently asked us to prepare litigation graphics for depositions
with an eye toward using those same graphics at trial.
4. In mock trials: These can be an excellent investment of money and time in a case that is large
enough and significant enough to justify the use of litigation graphics during the mock. See our
article on using litigation graphics during a mock trial.
5. In pre-trial hearings: We all know graphics are used in Markman hearings, but they are also
frequently used in summary judgment hearings and in hearings on motions to dismiss. Again, the
jury will not see the exhibits but a judge will.
6. In arbitration and alternative dispute resolution: This use of trial graphics is overlooked more
than others. Many arbitrations follow rules of evidence and resemble trials, and litigation graphics
are quite appropriate in them and in ADR generally.
7. In class certification hearings: Graphic demonstrations can be used in many aspect of class
actions, and the issue of predominance is one in which they are especially useful.
8. In advocacy and lobbying presentations: Hydraulic fracturing is a controversial issue, and the
graphic that we prepared shows how fracking works and may dispel some unwarranted myths
and fears about fracking. It's received 60,000 views as of this writing demonstrating how one
might use PowerPoint and video to get a message out.
9. In presentation graphics: Most of us prepare and deliver presentations as part of our work. This
article on presentation graphics showing how the President prepares and delivers an effective
visual presentation using persuasive graphics is a good guide for any of us.
10. In e-briefs: This technique is being used more and more frequently by trial lawyers, and e-briefs
are now including litigation graphics, sometimes animated graphics too.
11. In e-discovery disputes: Sometimes, a courtroom presentation consultant will demonstrate what
documents were missing and why sanctions were warranted. Sometime the graphics illustrate, to
the contrary, that the documents were completely or largely produced or that the matter in dispute
is not large enough to require sanctions. E-discovery hearings are utilizing persuasive graphics
more and more.
12. In settlement discussions: We have seen trial graphics prepared for settlement many times in
the last two decades. Recently, however, the sophistication demanded of those graphics has
been on the rise. Sometimes, even high-end 3-D animations are prepared. The trick, of course, is
to balance the persuasive benefit of the graphics with the risk that settlement talks fail, and you tip
your hand leading up to trial.
13. In pre-indictment meetings: As government budgets have increased over the last four years, so
too have pre-indictment meetings with prosecutors. We have prepared countless 'clopening' style
presentations for these meetings hoping to help our client avoid indictment altogether. Wellthought-through persuasive graphics may help avoid a negative life or company changing event.
14. In technology tutorials: No longer are technology tutorials used only in patent cases to help
educate the judge. Litigators are requesting to submit them in other cases where educating the
judge is beneficial to both sides. This could include complex financial cases, large antitrust
matters with a complex product at issue and many other types of cases.
Litigation Graphics, Psychology and Color

Meaning
by Ryan H. Flax, Esq., Managing Director, Litigation Consulting, A2L Consulting
As a litigation consultant, one of my primary responsibilities

is to help litigation teams develop and effectively use
demonstrative evidence to support their trial presentation.
The primary means of doing this is to create litigation
graphics, which are most commonly used as PowerPoint
slides that accompany oral argument and witness testimony.
A lot of what goes into creating effective litigation graphics
relies on the evidence to be presented. If the evidence relies
on a document and, specifically, on a particular part of that
document, a document callout is standard fare. If damages
are the issue, its not uncommon to use a chart or table to illustrate to the jury how they should add up
the money to arrive at the desired result. However, a lot more goes into designing and developing really
effective litigation graphics than the clever manipulation of evidence. Did you know that color plays a
major role?
Litigation graphics are almost never black and white they almost always involve the use of color. Most
colors carry psychological (and even physiological), cultural, personal, emotional, and expressive
implications that can impact how persuasive you are when using them. Heres an example:
Looking at the two photos of President Bush
to the right, minus any personal political views
you may have, which president is more
trustworthy looking? I bet you said the one on
the right. Do you know why?
In modern, holistic medicine, chromotherapy
is used to heal with color. This form of
treatment dates back millennia to ancient
Egypt, China, and India. A more prominent
use of color therapy occurs in environmental
design, which considers the effect of color on
health and behavior and develops interior
design, architecture, and landscape design accordingly. An interesting example is use of the
color Baker-Miller Pink (R:255, G:145, B:175), affectionately known as drunk tank pink because it is
commonly used in jails to keep violent prisoners calm.
Human responses to color are not just

biological, but are also influenced by our culture
(in China the color yellow symbolizes royalty,
but in Europe its purple that plays this
role). David McCandless created this amazing
color wheel (right) to illustrate how different
cultures interpret colors (or colours, as Mr.
McCandless is an author and designer from the
U.K.). People (and by people, I mean jurors and
judges) also respond to colors in individual
ways. Although research reveals variables that
help explain human responses to color, it is also
true that is our own color preferences are
important to us and partially dictate the effect
color has on us.
Color also causes emotional effects, which depend partly on the colors
surroundings and partly on the ideas expressed by the work as a
whole. There are two opposing ways to use color in graphics (as in art):
local and expressive color. At one extreme is local color, which is the
color that something appears when viewed under average lighting
conditions, e.g., a banana is yellow. At the other extreme is
expressionistic color, where artists use color to express an emotional
rather than a visual truth. Just look at the famous art from Pink
Floyds The Wall here the use of dark blue, gray and black in the
background convey an intense feeling of sadness and depression,
while the blacks and reds of the figure convey danger and anguish.
Both of these color concepts effect a viewers emotions. The
expressionistic use of color is very important in the field of litigation
graphics.
Why?
Jurors (and judges to an extent, as human beings) make decisions at trial based on their emotions above
all else (download and read this paper on the subject by Todd E. Pettys, Associate Dean at the University
of Iowa College of Law). Concepts like confirmation bias and research on decision making support this.
Two thousand years ago, Aristotle observed that the most persuasive arguments are those that appeal,
at least in part, to the audiences emotions (Aristotle, On Rhetoric: A Theory of Civic Discourse 112-13
(George A. Kennedy trans. Oxford Univ. Press 2d ed. 2007).
Traditional artists have used color to evoke emotion in specific ways:
Red heat, passion, danger, optimism
Yellow warmth, caution, fear, cowardice
Blue responsibility, trustworthiness, compassion, honesty, integrity, morality, coolness, quality
Orange confidence, creativity, fun, socialness

Green natural, healthy, harmony, cheer, friendliness, immaturity
Purple regality, intelligence, wealth, sophistication, rank, shock
Gray neutrality, ambiguity, dullness, somberness
Black evil, unknown, treachery, depression, undesirability, danger, falsity
White innocence, purity, fairness, conservatism, harmlessness, transparency
Pink femininity, sweetness, liberalism

Brown natural, solid, sadness
These same principles are applied today in information graphics and the graphic arts. For example,
according to Mr. McCandlesss color wheel (above and at link), the color black represents and connotes
authority, the color blue intelligence and rationality, and purple virtue interestingly, he indicates no
culturally based color in Western culture for wisdom or trust.
Did you ever notice how many law firm logos are blue? Why do you think thats the case?
Heres an exemplary litigation graphic that might be used by an expert witness using the abovediscussed color principles to evoke a sense that the expert is honest, unbiased, and intelligent:
It may look simple, but a lot of thought went into its
design. The overall color palate of blue, purple,
and gray is intended to evoke trust and neutrality.
Furthermore, the light blue color used in the text
boxes is intended to again express that they are
relaying true information. The accompanying icons
(the check and x-marks) are similarly colored so as
to relay that the top statement of opinion is
trustworthy (blue) and that the second two are
warnings (red) for jurors that they should not
believe what they heard from the oppositions
expert witness.
If you want to be more persuasive at your next trial or hearing, let us worry about these details to help
you be your best.
10
Information Design and Litigation Graphics

The term information design is less than fifty years old. The use of specialty trial graphics in the
courtroom started less than thirty years ago. Only very recently have the terms been used in the same
sentence. That is, only recently have individual practitioners of both arts emerged.
Wikipedia describes information design as "the skill and practice of preparing information so people can
use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual
representation can express its meaning more clearly to the viewer." I would call it simply the effective
and efficient presentation of information. Applied to the litigation graphics consulting industry of which I
am a member, I would add the word persuasive. This is true since the job of the modern litigation
graphics consultant is to persuade not merely to present information.
Effective information design is not new as evidenced by Charles Minard's 1869 chart below. It plots the
size of Napoleon's 1812 army (width of the beige and black areas), the distance traveled, the time
elapsed and temperature on the bottom. In a nutshell, it tells the ill fated story of the near complete
elimination of Napoleon's 400,000 man army due to battle deaths but mostly deaths from sub-freezing
weather conditions. On the original, each millimeter eerily and with clever mathematical alignment
represents the deaths of one thousand men. Looking at the chart, it's no wonder Tchaikovsky penned
the 1812 Overture to celebrate the Russian victory defending Moscow.
[courtesy Wikipedia Commons]
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Of course, effective information design is around us every day. Mostly, it goes unnoticed except by those
of us who study it, and that is exactly the point. When we instantly know which bathroom door to walk
into, what dangers lie ahead in the road, which button to press on the latest Apple product or which
subway line will get us to where we are trying to go, we are likely experiencing effective information
design. The map of the Washington DC Metro is one of my favorites. A comparison of the current map
and a map drawn to scale is below. It is pretty clear which works best, and it strikes me as funny that the
scale version looks a lot like the style of NYC's map which recently underwent a redesign.
12
In the courtroom, incorporating information design with trial graphics requires the talents of a highly
skilled practitioner. This is true since the viewer (judge and/or jury) will not usually have much time to
consider or quietly reflect on the graphic. The courtroom viewing experience is an altogether different
one than studying a printed subway map or reviewing the latest New York Times information graphic.
Instead, the courtroom information design or trial exhibit is something that must be quickly digested and
designed with maximum persuasive impact. I like to think of litigation graphics as telling a one sentence
story as opposed to Charles Minard's paragraph-long story about Napoleon.
13
For example, you might want to say a firm or person is speaking from both sides of their mouth:
Or you might want to say someone is playing a shell game with company ownership:
or you want a jury to remember a key term like video tagging in patent litigation:
14
or you might want to summarize how the standard of care requiring a single diagnosis for multiple
medical symptoms was not met:
It is pleasing for me that the worlds of information design and trial exhibit design have merged in a
handful of trial graphics consultancies. These firms are putting out amazing graphics on a daily basis that
persuade when millions or billions of dollars are at stake. I am honored to be a part of this industry and
proud of my firm's achievements in advancing its growth and acceptance.
15
7 Ways to Prepare Trial Graphics Early &

Manage Your Budget
by Theresa D. Villanueva, Esq., Director, Litigation Consulting, A2L Consulting
One of the many questions I often hear is: how far in

advance should we engage a trial consulting or trial
graphics firm?
Generally, we prefer to work with the trial team sooner rather
than later, but it is not uncommon to get a last minute call for
a trial that starts in a week or even a few days. However, the
longer we have to prepare the better.
One of the benefits of starting earlier is that we can begin to
develop the necessary rapport with the trial team and work
together to develop case themes and a visual story - all tasks
best facilitated by more time. Also, more time allows for
additional prep time for presentations and trial graphics as
well as other things such as electronic briefs, trial technology,
and jury consulting, or even a mock trial/jury research.
Getting an early start can alleviate a lot of stress. Of course there will always be the last minute changes,
as you get closer to trial, but at that point the changes are typically minor. However, more time to
prepare can sometimes present as many challenges as having a short time to prepare.
One of the challenges we often face when we are given the luxury of engaging with a team earlier rather
than later is managing the budget. It is easy for the trial team to get carried away when you have months
to think about the demonstrative evidence. Ive seen many times where teams either get bogged down
with nitty gritty details and cant agree on a color, to teams that want to see some of the craziest trial
graphics ideas they can come up with, because we have the time, right? But time does not always
equal budget.
I have laid out a seven tips below on how to keep things in check when getting an early start on preparing
trial graphics.
1. Set a schedule and stick to it
After our first meeting with a team, it is always helpful for us to set a schedule for team meetings, first
drafts etc. Sticking to this framework will keep everyone in check and alleviate the uncertainty about how
to proceed and when to expect content to review.
16
2. Use this time to collaborate with your trial consultants not just reviewing the trial graphics
What better way to utilize this time than to work closely with your trial consultant? It doesnt make much
sense for our team to spend time developing 40 slides for opening statement when you havent even
begun to think about it. Take this time to review the case and discuss the story and case themes with
your trial consulting team. Telling your story and getting an outsider's feedback can help you to start
weeding through the details.
3. Avoid the hurry up and wait approach
Once we are engaged, trial teams will sometimes want to see things immediately for review because they
are excited to get started, and then they disappear for weeks. My suggestion is if you have the time, take
the time. If we are engaged very early on, many of your case themes may not be fully developed so it is
probably not in the best interest of your budget to make trial graphics that are likely to be irrelevant later.
Instead, work with your consultants to develop the story first and then create the trial graphics.
4. Expect monthly budget updates from your trial consultant
Keeping the team apprised of where things stand with their budget is essential. Doing a regular
assessment of costs not only keeps the client and our team aware of the level of effort being put into the
project, it also can help head off an uncomfortable post trial discussion about the bill. Additionally, it helps
our team assess the level of effort we are putting in. Are we spending too much time at the front end
knowing that there will be a time-intensive crunch at the end that will throw everything off budget?
5. Dont get hung up on the little things
This is key in any project whether we have one year or one week to prepare. Spending time discussing
what shade of blue to use and wanting to see the same graphic with these different shades of blue is not
a valuable use of time or budget. Unless there is a color that vehemently offends you, trust that your trial
consultant and artists know what colors (or shades of blue) will work best.
6. Define the scope and layout a framework of the graphics
This ties directly in with number 2 above. Work with your consulting team, and layout a framework of
what trial graphics are needed. Getting started in advance gives our team and yours the luxury of thinking
about the case and what key demonstratives are really going to give you the edge you need. One way
we have accomplished this successfully is to develop either a MindMap or an all-encompassing list of
possible graphics that we see everything from A to Z. Then, meet with the team to discuss how the
graphics will look? What information will it convey? Do we really need it? Taking this approach, a lot less
graphics end up on the cutting room floor, so to speak.
7. Be mindful of revisions
Revisions are many times the reason budgets get out of control. Having months to look at and think
about the trial graphics can lead to too many revisions. One way to avoid this is to not make edits until
your draft outlines are closer to final, and provide edits/revisions all at once. Providing edits/revisions
piecemeal can really inflate time and budget.
So, when time is not of the essence, use that to your advantage, and remember these quick tips above to
alleviate stress and bring your trial graphics needs in right on budget.
17
18
In Trial Presentation - A Camel is a Horse

Designed by Committee
There is an old expression that a camel is a horse designed by
committee.
The expression means that when many individuals design something
as a group, every imaginable feature will go into the finished product
and it will end up with many important features. But the product will
have lost its beauty and sometimes will have lost some of its
usefulness as a complete entity.
Working with trial teams to create a trial presentation can sometimes feel a bit like designing a horse and
ending up with a camel. Many people provide lots of input on a particular presentation and sometimes, it
ends up that too many features have been added to a single trial presentation. Unless a strong leader
seizes control and dictates the final content, the project can go in any number of directions at once, and it
may fail to be as outstanding a product as it can be.
An easy business comparison is Apple. There, great design is at the core of the company's success and
has made it the most valuable company in the world. Since the 1990s, the man behind this great design
is London-born designer Jonathan Ive. Ive, Apples senior vice president of industrial design, has been
responsible since 1996 for leading a design team widely regarded as one of the worlds best. Ive has
been said to have the obsessive desire to create products that are meaningful to people.
Ive is ultimately responsible for the design of the iMac, the iPod, the iPhone and the iPad. It was he who
brought the great designs to Steve Jobs for his consideration. Jobs would pick among Ives proposed
designs. Fortunately for us, Jobs was right most of the time. What we never see from Apple, however,
are all the rejected designs.
At A2L, we see ourselves as the Jonathan Ive of a trial team, constantly bringing great trial presentation
ideas and prototypes forward with the hope that the first chair litigator will see something that he or she
likes. In my experience, the stronger the leader, the more likely it is that a good trial presentation design
approach will be selected and the camel-like result avoided.
Our recommended approach when lots of individuals need to provide input on a project is simple.
Everyone has a voice, but only one person has a vote.
19
5 Problems with Trial Graphics

by Ken Lopez, Founder & CEO, A2L Consulting
Just because you use trial graphics at trial does not mean you increase
your chances of winning at trial. In fact, when you choose to use trial
graphics, many risks are introduced. Used the wrong way, trial
graphics, litigation graphics and demonstrative evidence can do more
harm than good.
Accordingly, I think it is critical for a lawyer to carefully manage these
risks. The good news is that all of these risks can be easily mitigated.
And, used properly, the benefits of using trial graphics far outweigh
potential risks.
Here are five problems that commonly arise when trial graphics are used and some strategies for
reducing your risk to near zero.
1. Technology failures: Quite a bit can go wrong with technology in the courtroom. This includes
not getting permission to use it in the first place, projector bulbs dying with no replacement,
projectors that barely work, videos that are difficult for counsel to run, printed trial boards that are
not sized properly for the room and much more. To manage these we certainly recommend the
use of the highly experienced trial technician. Here are some resources that will help you manage
the risk of a technology failure.
a. Free guidebook for hiring the best trial technician
b. Overview of our courtroom technology services
c. Using TrialDirector in the courtroom
2. Reading bullet points: We have written about this topic before. For a variety of valid scientific
reasons, if you read your slides or read your bullet points, you are doing more harm than good.
Its one of the most common mistakes presenters make. Here are some articles that explain this
in more detail.
a. 6 trial presentation errors litigators can easily avoid
b. 12 reasons bullet points are very bad
3. You decide to make your own slides: You're smart. You own the latest copy of Powerpoint. You
know enough to not use spinning entrance animations and the applause sound effect. So, why
can't you just start making slides? Well you can but when you do this youre not efficiently
using your clients money (our billable rate is much lower than yours) and as we described in a
previous article, youre probably not going to come up with the best graphic for the task time after
time. Remember we do this everyday of the year, sometimes consulting on hundreds of cases in
single year.
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4. You build your trial story and outline in Powerpoint. Quite a few litigators write their outlines in
Powerpoint, and I don't think it is an ideal approach. Often, they will start writing out slide after
slide of the points they want to make, then they hand that to us and say, make these look good.
This is not a good approach. First, your billable hour is higher than ours, and you should be
working in Word for efficiency. Second, handing us a series of slides deprives us both of the
chance to improve the story together. Third, there are other more beneficial methods to
developing your outline. Here are some helpful articles that touch on these points:
a. 5 keys to telling a compelling story in the courtroom
b. Working together means a better and simpler output
c. 7 ways to draft a better opening statement
5. The wrong points are emphasized: I like to say that the documents at trial are the words in a
sentence, the electronic trial graphics are the periods and the printed trial graphics or highly
thematic electronic exhibits are the exclamation points. For this last category, the key is to make
sure you are not emphasizing the wrong thing. The best way to do that is to test the case
with mock jurors or a mock judge panel. If that cannot happen because of budget (time is rarely a
good excuse), then at least work with your litigation consultant to get some commonsense
responses to the material. Here are some related articles:
a. An overview of the mock trial process
b. Test both arguments and graphics to be effective
c. 6 good reasons to conduct a mock trial
Most litigators use Powerpoint to display trial graphics at trial. However, in the wrong hands, Powerpoint
can be a dangerous tool. Sometimes, it gives the illusion of adding value when it is actually doing
damage.
Powerpoint doesnt ruin a presentations impact, people do.
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3 Ways to Handle a Presentation-Challenged

Expert Witness
At A2L, we have the privilege of working with experts in many diverse
and highly technical fields, such as software patents, polymer patents,
semiconductor patents, medical device design, environmental
remediation, construction, financial disclosure, economic damages,
transportation safety, corporate management and many more.
When we work with these highly educated and often brilliant specialists
people whose testimony can often make the difference between
victory and defeat for our clients our task is, quite simply, to help them
be as effective as possible. We achieve this primarily by helping the
attorneys painstakingly prepare them for their deposition testimony
before trial and for their direct testimony during trial, including the
development of visual presentations that track their testimony. Experts
must not only be well prepared for their own set testimony, but even
more so for every possible attack by cross-examination, which is really
where the case can be won or lost.
In general, experts fall into two camps when it comes to their ability to use visual aids to support and
even explain their testimony. Some welcome the help from trial graphics consultants so that their highly
technical presentation will be better understood by a jury of laymen (and even the judge, who may not be
technically savvy), but some are already quite certain that they will be well understood by judges and
juries and don't think charts are going to help.
This article provides tips for how a litigator can deal with the latter, more difficult, type.
Twenty years ago, many trial lawyers believed that trial graphics were unnecessary to help them be
persuasive to juries and judges. But now we have studies showing the overwhelming benefit of using
visual tools in the courtroom, and especially because the pace at which people (remember, judges and
juries are people) expect to receive information is ever increasing, these old-school views are no longer
valid.
So how does one convince an expert witness who is a specialist on his or her subject matter and often
testifies about it in court that he or she should accept some help at being understood?
I suggest three possible strategies.
Appeal to the experts ego. Tell the expert that most jurors and many judges are just not as smart as
the expert, so they need the visual tools to help them understand it. A useful quote may inspire a
willingness to accept the need to communicate more effectively. Machiavelli said, Before all else, be
armed. But, be armed with the right tool and the understanding that the typical juror may not have a
college degree and is most used to learning by watching television.
Video-test the expert. If the expert has shown any interest in improving the quality of his or her
testimony, there is no better way to begin than using repeat video tests. This can be done with or without
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a live mock jury or an online evaluation service. In the world of performing, there is a clich that is
equally useful for the courtroom: A bad dress rehearsal means a great performance.
Give up. Why try to force someone into a situation that he or she is not ready for? The expert, whom you
need to look as confident as possible, will simply register discomfort on the stand. And in expert
testimony, persuasion is 20% what you know and 80% how you feel about what you know. The reality is
that, if the suggestions above have failed, this is probably the wrong expert, and next time, you should
shop around. As a litigator, you should no more have to explain the need for thoughtfully developed
visual aids to an expert any more than a client should have to explain this to you. After all, one cannot
after all expect to solve todays problems with yesterdays tools.
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10 Reasons The Litigation Graphics You DO

NOT Use Are Important
Like creating a new logo or a new ad campaign or hiring a
speech writer - or perhaps the best comparison of all, like a
trial attorney preparing for trial - we normally find that a lot of
work goes into creating draft litigation graphics that are not
ultimately used at trial, in a hearing or for some other
originally intended purpose.
Michelangelo, sculptor, artist and architect, said, "Every
block of stone has a statue inside it and it is the task of the
sculptor to discover it."
Creating litigation graphics is a lot like that. When we come into a case, more often than not the trial team
has not considered how to present the case, and we are just months or weeks from trial. Our job is to
quickly understand the case, assess the trial team's style, whether creative or plain, whether wordy or
more modern, whether multimedia or single-channel, and then begin generating litigation graphics,
sometimes hundreds of them, in short order.
What may seem like chaos is actually a well-rehearsed act of creativity. Like Michelangelo's block of
stone, we begin to visualize the finished piece by chipping away the unnecessary portions of stone. In
practical terms, that means running a lot of litigation graphics by the trial team and then paring down. So,
in a sense, we have to both build the stone and sculpt it. From chaos comes order.
Just as a branding firm will usually give you three to nine designs to pick from, or as a speech is refined
over time, or as a trial team will abandon themes, arguments, or claims at trial, when creating litigation
graphics the final product is properly a product of a whittling down process. Thus it is in a trial
team's best interest and the client's best interest to accept a large number of litigation graphics early on
that won't be used in the final product.
You see, without a set of boundaries or a map to navigate by, the trial team has to work harder under
increasingly stressful conditions to express their desires clearly to the litigation graphics consultants.
Thus, it is best to be frugal closer to trial rather than earlier in the development of litigation graphic
designs. Otherwise, one is being penny-wise and pound-foolish.
Here are 10 reasons that those bits of creative stone you chipped away when creating litigation graphics
were more important than the finished product.
1. You may not know what you like until you know what you don't like. Whether you are picking
out new furniture, a new car or deciding on the right approach for litigation graphics, it is normally
easier to rule things out than conjure the perfect end result.
2. You know it when you see it. Many people have a good artistic eye but lack the experience and
training to execute the vision. This is typical and a good quality among most litigators.
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3. Choosing from a menu of options is easier than designing from scratch. You don't often go
to a restaurant and say I'd like you to combine these 10 ingredients into something I like. The
same is true of litigation graphics. You order from a menu, because it is easier for you.
4. Choosing from a menu of options is faster than designing or describing in precise detail what
your end product should look like (and your hourly rate is higher than ours).
5. Its easier to pick and choose elements. If you have ever been involved in a logo design project
or redecorated a house, you'll surely have experienced this phenomenon. You'll often like one
thing from here and another from there. It's normal.
6. You can avoid the problem of a horse designed by committee. (It results in a camel, in
case you were wondering.) A graphic in draft form has some amount of stickiness; it is less likely
to be radically changed than an idea in someone's head.
7. This process helps the litigation graphics firm match your style earlier, not later. Different
trial teams have wildly different approaches. One of the best ways to assess a team's approach is
to put work in front of them and assess their reaction. This is why we insist that the first review of
any first draft presentations is done in person or by video call. Our litigation graphics consultants
must work from the team's reactions.
8. You find an opportunity to assess admissibility. Sometimes a graphic that someone on the
team wanted to create is just not going to be admitted, but it needs to be created anyway - just to
get ruled out. At the insistence of counsel, we've put devil horns on alleged thieves, we've made
people look like they had a mug shot, and we've illustrated the opposing party's image to look like
a robber baron. We know they won't be used and won't be admitted, but it was an exercise that
had to be seen through.
9. Time to reflect produces better results. Whether it be a new way of looking at analogy or a way
we open the door to evidence we don't want in - putting more exhibits out there helps us deliver a
high level of creativity.
10. Most importantly, without having gone through the process of many drafts becoming one
final graphic, you would not have arrived at what is your David or Sistine Chapel - whether
that be your opening presentation, your Markman hearing, your patent tutorial, your ITC hearing
or your arbitration, without all the efforts to get there.
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Teaching Science to a Jury: A Trial

Consulting Challenge
Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts
to jurors who are not well versed in science. The lawyers job is to convey the science correctly to the jury so
that they can make a rational decision yet not to bury the jury under a blizzard of scientific terms and
concepts that they will never understand.
The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines,
demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms
that jurors who are not specialists in the scientific subject can understand.
Analogies (in other words, what is something like?), contrasts (how is something different from something
else?), and simple definitions (what are the components of an object? how is it used?) are very useful tools for
the trial lawyer.
As Jan DArcy wrote in 1998 in Technically Speaking, Many scientific subjects are hard to describe; they can
be difficult to see, touch, measure or imagine. A presenter should find ways to illuminate a concept in known
terms with the least amount of distortion. . . . Comparisons and contrasts are two of the best ways to translate
your information clearly to your audience. Similes, metaphors, and analogies are comparisons that can often
lead to amazing insights.
The brief movie below shows how restenosis (the formation of new blockages at the site of an angioplasty or
stent placement) can form in blood vessels when a non-drug-eluting stent (one that does not contain an antistenosis drug) is used by a heart surgeon. This is a highly technical medical subject, yet after seeing the
presentation, jurors will understand how stents work and why such drugs are used. Just months ago, this A2L
Consulting animation and others like it helped a long-time client win the 6th largest patent litigation verdict in
history totaling $593,000,000.
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Below, we created a very straightforward, highly memorable patent litigation graphic that shows one person
walking his own path, away from conventional wisdom, to show that an inventors idea was unique and nonobvious.
Similarly, we have devised a 78-second video presentation that details the challenges of inbred reproduction,
and the advantages of hybrid reproduction, in the corn plant. This is easily understandable to a juror, even one
who does not have a background in biology or food science.
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Finally, the schematic diagram below uses the excellent analogy to the letters and numbers in a license plate
an object familiar to jurors to indicate how many possible structures of a chemical compound can exist and
thus how the one structure designed by a client was not obvious and therefore was deserving of patent
protection.
As Matthew Weinberg, CEO of the scientific consulting firm The Weinberg Group notes, "Successful
litigation relies upon a strong science story. An expert who can explain the science easily and clearly makes a
difference. Juries want to understand the science and can be helped by an expert who makes it interesting
and believable."
We believe that no scientific concept is too difficult to teach to a jury. In our 16 year history, we have found a
way to successfully teach and persuade about everything from the genetic development of cancer, genetically
modified corn, stem cells, physical separation in patented pharmaceuticals, metal fatigue, the transportation of
air, water and ground pollution, DNA, bioequivalence, how allergies work, epidemiology, physics, chemistry
and countless applied science medical principles.
With the right combination of trial team, trial consulting firm and expert consulting firm, any concept can be
made understandable by combining a good explanation and a good visual.
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Trial Graphic: Could a Wall Chart Change

How Litigators Prep Cases?
I have had the great pleasure of working closely with hundreds of world's best litigators since 1995. One
common theme they communicate is that they see simplifying their case, prior to walking into the
courtroom, as part of their job. Today, I am writing to share about a 'new' tool designed quite precisely
for this purpose.
The new tool is a modern software version of a decades-old technique modeled on centuries-old
principles. In general this tool facilitates the visualization of complex and interrelated ideas. Specifically, I
am talking about a process called mind mapping.
Mind mapping is a 60s-era-sounding term for an activity that seems, at first glance, like it must have
certainly been born on the left-coast. In a sense, both of those things are true. It was in fact developed
in the era between the 50s and 70s, and it was born on a left coast of sorts. However, this 'left coast' is
really the western suburbs of London.
Regardless of mind mapping's nonconformist origins, I believe it has a place in the toolkit of the modern
litigator. After all, many thought-leading litigation trends were born in California or places like it (e.g.
demonstrative evidence, jury research, courtroom animation, etc.).
A small version of a 30 inch x 90 inch litigation mind map is shown below. I encourage you to download a
full-sized .pdf version of the actual chart to get a feel for how it is laid out.
This sample mind map is based on a group of cases where we have used mind
mapping as a system for quickly understanding a complex case in a short period of
time, brainstorming a trial presentation approach and laying out specific exhibits.
In this chart, green circles represent likely demonstrative exhibits, red boxes
represent problems with our case that require additional strategic attention and the
yellow boxes contain the background information on the case, trial team and
strategy.
The same approach we take for trial graphics development can easily be taken by
a trial team organizing a complex case with many experts, theories and potential
trial strategies. In addition to the obvious organizational benefits, the beauty of
using this approach is just how easily one can pick up where one left off. I have
gone a month or more between deeply complicated meetings and been able to
start precisely where we left off without spending time trying to re-teach the team
everything that was discussed weeks or months before. This is one of those
benefits that I think one has to experience to believe.
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While litigation-specific tools do exist that offer a some of the features in today's mind mapping software, I
prefer using a flexible tool that works very well. I have used two products: 1) Tony Buzan's iMindMap
(he is considered the father of modern mind mapping); and 2) Mindjet's MindManager. I prefer the latter,
as I find it to be a bit more business-oriented.
When working with our firm on trial presentation strategy, we will likely be using mind mapping either
internally or overtly. However, we are interested in testing this approach with a trial team at the front-end
of a case rather than within the time period we are more typically consulting with the trial team (6 months
prior to trial). If you would be interested in testing this technique with your trial team, we are willing to do
so gratis for a limited number of trial teams working complicated cases with at least $10 million at stake.
The output will be a wall chart for your team that you can refer to on an ongoing basis.
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Explaining Patent Claim Language in

Patent Litigation
Quick, tell me what this patent claim language means:
Unless youre a patent geek like me, you probably

havent the foggiest idea how to interpret this language.
But if you are an attorney in a patent infringement
litigation, your job is not only to explain to a judge and
jury what claim language means, but do so in a
convincing and persuasive manner. If the fact finder
remains as perplexed after your presentation as you
were on first reading of these words, you are unlikely to
win your case.
Would it help you understand this claim language from U.S. Patent 7,657,849 if I showed you one of
the drawings from the patent? I suspect it will, so heres one above.
So what have you learned now? Now you know what the claim probably means by a touch-sensitive
display because this figure says right on it that youre looking at a Touch screen. Still, what does the
claim language cover, specifically? What sort of product might infringe this claim? Heres a big hint:
This patent is owned by Apple Inc. Im sure youve guessed it now this patent is written to cover this
product below:
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Seeing the iPhone, as in the image to the left, makes most of the claim
language pretty clear. This is the now-famous Apple slide-to-unlock
patent that covers the way users unlock the screen on an iPhone or iPad
to use the device. Hasnt the language become so much clearer now
that you have the graphical information Ive provided by showing you an
iPhone?
People, including judges and jurors, are usually combination learners,
and visual information is an important component of teaching and being
persuasive. Now that youve seen the iPhone, its probably pretty clear
to you what the claim term display an unlock image means. Also, its
probably equally clear what the claim means by transition the device to
a user-interface unlock state if the detected contact corresponds to
moving the unlock image along a predefined displayed path it means
that the device senses that youve slid your finger along the arrow I
added to the iPhone picture. Pretty clear now, isnt it?
Now, what other products might infringe this Apple patent? What other products might use this type of
unlocking feature? What about this one?
Wow, HTC's new phone looks pretty similar, doesnt it? Are
you convinced? Maybe not completely yet, but you cannot
deny that the similarities in this comparison are compelling.
This is a simple example of why trial graphics are so
important, particularly in patent litigation when explaining
claim language.
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Font Matters - A Trial Graphics Consultant's

Trick to Overcome Bias
A fascinating new study in the field of social psychology indicates
that the type font in which an argument is presented has an effect on
how convincing it is. For trial graphics consultants and litigators alike,
this is potentially very big news.
The study, published in the Journal of Experimental Social
Psychology [pdf], tested the effectiveness of political arguments in
convincing people to change their minds and also tested peoples
attitude to a hypothetical defendant in a mock trial.
It is well known that people tend to disregard arguments that vary from their own longstanding views and
to take note of arguments that support their views. This phenomenon is known as confirmation bias. For
litigators and trial graphics consultants, we know this means judges and jurors will only closely pay
attention long enough to confirm what they already believe - so, we need tactics to overcome this bias.
The idea behind such research was to present the arguments in hard-to-read type faces (e.g. light gray
bold and italicized Haettenschwiler, and, the scorn of all design professionals, Comic Sans italicized) and
to see whether confirmation bias was just as strong as when the arguments were presented in normal,
easy-to-read type (Times New Roman).
Below are two sample trial graphics that compare two of these fonts. The first image uses easy-to-read
Times New Roman for the callout.
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And the second uses hard-to-read light gray Comic Sans italicized.
The result of the study was that confirmation bias was moderated by the use of the hard-to-read type.
Normally, those who believed the defendant was guilty would stay with that view after reading the
arguments pro and con, and the same would be true of those who thought the defendant was innocent.
They wouldnt change their views.
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But with the hard-to-read type, more people began to seriously consider the arguments against their
initial position.
"We showed that if we can slow people down, if we can make them stop relying on their gut reaction -that feeling that they already know what something says -- it can make them more moderate; it can have
them start doubting their initial beliefs and start seeing the other side of the argument a little bit more,
said graduate student Ivan Hernandez, one of the leaders of the study.
What might this research mean for trial graphics consultants and litigators?
First, theres no question that confirmation bias exists among jurors. A juror who, because of the opening
statement or for some other reason, approaches the trial evidence with a certain perception, is unlikely to
change that perception. That is one of the trial lawyers toughest challenges to reach a juror (or judge)
who starts out against his or her client and to get that juror to reconsider.
This study seems to say that hard-to-read typography will disrupt that bias and lessen its persistence,
perhaps by making people slow down. This may affect the preparation of litigation graphics by trial
graphics consultants by forcing them to consider whether a bias against their clients exists, and if so,
making exhibits more, not less, difficult to read. This might mean that text call-outs from scanned
documents should not be retyped and that persuasive titling should be in harder to read fonts.
We will begin testing these findings with our mock juries, and if they prove successful, testing them at trial
as well. Anything to make jurors (metaphorically) stand up and listen (that is within ethical and legal
boundaries) is fair game for trial graphics consultants. We will keep you posted.
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Dont Get Too Cute With Your Trial Graphics

by Ryan H. Flax, Managing Director, Litigation Consulting, A2L Consulting
You must use trial graphics and other demonstrative evidence to
be as persuasive as possible and win at trial. But, if you use trial
graphics incorrectly, you risk losing everything. Take the recent
trial scenario that played out in Orange County, California as an
example and a warning.
In The People v. Otero, a criminal prosecution over a sexual
assault on a child, in her closing arguments, the prosecutor began
to discuss the burden of proof as we all know, in criminal cases
its beyond a reasonable doubt. The question is, what does that
really mean. The prosecutor wanted to make the point that the
burden does not require absolute knowledge not every fact must
be supplied and not every fact supplied need be perfectly accurate
to satisfy this burden.
However, the prosecutor took it one step too far.
She used a trial graphic to demonstrate her point. It was similar to a combination of the graphics Ive supplied
above and below. Instead of showing an incomplete puzzle, it showed the state of California, without an
identifying label and with some incorrect city locations and names. She began explaining that she wanted to
identify the name of a state that looked like the one in the image (the trial was in California, by the way) and
even though there was some incorrect or incomplete information, she knew the state was California. Well, the
defense jumped right up and objected to that trial graphic.
The court sustained the objection and instructed the trial graphic be
taken down and not referred to again. Then the judge instructed the jury
to disregard the trial graphic and the discussion thereof. The trial and
closing arguments continued and ultimately, the jury found the defendant
guilty.
On appeal, the defense argued that the prosecutors little stunt with the
map of California amounted to misconduct warranting reversal of the
conviction. The Court of Appeal agreed that the trial graphic and
argument was misconduct, but that it was harmless because it was
taken down so quickly and because the strong evidence for conviction in
the case.
The court explained the problem: the prosecutor was misstating the law relating to its burden of proof. The
beyond a reasonable doubt burden is not quantitative its not based on a certain number of puzzle pieces of
evidence fitting together. So, its misconduct for the attorney to present it that way. Its misconduct to tell the
jury that if they have X number of puzzle pieces they should convict. So, although its always very tempting to
make a graphic like this because the subject matter simply lends itself to visuals, you need to take a step back
and decide just how to make this point visually and appropriately.
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I dont know for sure, but I imagine that the prosecutors path to this misconduct went something like this:
Hey, Ive got a great idea! And, if the law didnt matter, she certainly did have a good idea. Make your case
using trial graphics. Explain to the jurors that its okay to convict this guy even though you dont feel 100%
positive of his guilt (he admitted to the crime by the way). What this attorney was missing was someone by her
side to say, hold on a minute, you cant do that or lets
rethink this before committing to this strategy.
This is where a litigation consultant is invaluable. No matter
how many trials youve been through as an attorney, weve
seen more as consultants (were attorneys, too, by the way).
Our specialty is how to get your persuasion on and how to
do it the right way. A good litigation consultant is someone to
bounce these ideas off of and work through the way to
graphically make your case and how to stay inside the lines.
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Beyond PowerPoint: Trial Presentations with

Prezi and Keynote
by Ken Lopez, Founder and CEO, A2L Consulting
No trial presentation exhibit specialist can perform any better than his or her tools. Although the judge and
jury arent usually aware of what software the trial consultant is using, the choice of presentation software is
essential to the success of the consultant, and ultimately to the success of the case.
Over the last decade, presenting demonstrative evidence has usually meant using PowerPoint. In the hands
of an expert trial consultant, PowerPoint is an extremely flexible tool. As we said earlier this year, for
talented information designers, PowerPoint is a blank canvas that can be filled with works of presentation
art. Among major law firms, PowerPoint still maintains nearly a 100 percent market share. After all, if
something has been shown to work over and over again, there is every reason for a trial lawyer to continue
using it rather than trying something new and unproven.
However, PowerPoint is beginning to face some competition. One source of competition is Apples Keynote
program. Not surprisingly since it is an Apple product, Keynote is easier to use and generates presentations
that are more attractive over all. Transitions feel more professional, animation effects are more designoriented, and the designer will find it easier to create a slick looking presentation. In addition, presentations
can be imported from PowerPoint and exported for use on the iPad.
The sample below, courtesy of keynoteuser.com, shows off some of the features of Keynote
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As a reviewer has noted on CNET, Keynote is a pro-level tool, probably the application most able to compete
with the 10-ton gorilla, Microsoft's PowerPoint . . . [Keynote] faces an uphill battle against the entrenched
Microsoft PowerPoint. But Keynote has, from its first incarnation, done some things better than PowerPoint
Another much newer and arguably much more exciting competitor is Prezi, which has been referred to on
wired.com as a digital poster online and kind of like a giant concept map. This is the zooming presentation
tool that has wowed crowds at the TED Talks.
Rather than rely on slides, Prezi creates a very large electronic canvas and permits viewers to zoom in on a
particular element of the presentation, either interactively or scripted to behave like slides. With Prezi, you
never have to wait for a slide that is 20 minutes away. Every element has a location in both time and space.
For the right subject matter, Prezi can potentially be very helpful to the trial consultant. For example, if the site
plans of a manufacturing plant, or the structure of a coal mine are at issue, each element could be zoomed in
on without distracting the jury. In fact, a Prezi presentation might appeal to the jurors basic concept of spatial
orientation and help them understand something that would be hard to show with another software package.
Unlike PowerPoint or other presentation mediums, it is easier to maintain context.
Below is a Prezi of a large timeline originally designed for display as two printed foam core trial boards
measuring five feet wide each. This short Prezi trial presentation was built in just a few minutes and designed
only to introduce the use of Prezi in the courtroom. The camera pans around the timeline in a scripted fashion
and is advanced using the play button. It does not take too much imagination to see how this might be useful
in a trial presentation.
While I dont see PowerPoint disappearing or even losing significant market share any time soon, competition
is a good thing, and I am looking forward to a time when healthy competition will create software products that
are even better adapted to litigation consultants needs than they are today.
Watch for an upcoming article that shows off more of the Prezi toolset.
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Why Patent Trial Graphics Matter-And Not

Just for Confused Jurors
by Ryan H. Flax, Managing Director, Litigation Consulting, A2L Consulting
One of the most controversial and followed topics of U.S patent law in the last
few years is that of patent eligibility. This subject has been litigated to the
Supreme Court and to the U.S. Court of Appeals for the Federal Circuit over
scientific subject matter spanning software to biotechnology, with mixed results.
The bottom line is that abstract ideas and natural phenomena are not patent
eligible. Both simple steps performed by a computer and treating disease with a
metabolite fabricated by understanding how the body converts chemicals into
useful, therapeutic substances have been held to be not-patent-eligible.
Conducting a business transaction similar to business transactions that have
occurred for decades, but doing so over a network may seem logically not patent eligible. However,
discovering how a drug is converted to another chemical in the body and then therapeutically using this
information to teat a patient seems to be just the opposite and a patent-worthy innovation. Its certainly
arguable that both technologies should be patent eligible, but it all depends on how theyre claimed.
The USPTOs general counsel, Bernard Knight, recently addressed an audience at the Fordham (law
schools) Intellectual Property, Media & Entertainment Law Journals annual
symposium and expressed his and the Patent Offices frustration with the lack of
guidance from the high court on this foundational legal issue. Mr. Knight reportedly
explained, "We have 7,000 examiners that have to make patent eligibility decisions
every day, and it's very difficult to do that when the only guidance from the Supreme
Court is that software is not patent-eligible if it's an abstract idea." It seems that the
USPTO is not really sure what the law is or how to correctly apply it.
So if the government agency responsible for granting patents finds patent law
difficult to understand, how well do you think your jurors are going to get the
concepts of infringement, the doctrine of equivalents, anticipation, and obviousness
(and, yes, patent eligibility)? Not too clearly is my guess (actually, its more than a guess I know they
dont really get it).
Hence, your job. Make jurors (or even the court itself) understand or think they understand the law and
also see it your way. But, this is no easy task, which is lucky for you and I both since, if it were easy,
clients wouldnt need us.
There are good reasons that more than half of A2L Consulting's trial graphics and litigation consulting
work is related to patent cases: patent typically involve complex and technical subject matter that must be
explained to non-technical judges and jurors, the cases frequently make it to trial because settlements
are often more difficult to craft in patent cases, and patent cases may often have hundreds of millions or
even billions of dollars at stake (which is another reason they dont settle).
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A2Ls extensive experience in intellectual property litigation and patent trial graphics has proven that
there is no more effective manner in which to present this type of information than through a visual
format. The use of animation, in particular, in order to simplify issues and educate the modern day jury is
akin to the Discovery Channel educating an entire generation of TV viewers.
Dont let your jurors become frustrated (like the USPTO) with your case because they want to, but cannot
understand it. Make your trial presentation, including the explanation of the facts and how the fit nicely
into the law, as persuasive as it can be using all the tools at your disposal. You must use graphics to
teach and persuade.
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Top 5 Trial Timeline Tips
Although trial consultants prepare dozens of different types of exhibits that help judges and jurors
understand a case, timelines are one of the oldest and most reliable. After all, most cases involve some
sort of time sequence, and the order and timing of events can be crucial. Timelines give jurors an intuitive
understanding of a case if they are done well.
While it seems simple to prepare a timeline, it is actually an art that requires practice and experience, just
as any form of trial presentation would be. The following suggestions have worked well for our firm in
over 10,000 cases since 1995:
Engage Your Audience: The timeline is meant for the jurors or the judge to understand. Its a device
that makes the case clearer to them. The timeline is not something that is intended to jog your memory.
You should know your case perfectly or nearly perfectly without the timeline. In fact, in order to keep your
audience engaged, you should feel free to add devices like photos, videos, charts, and the like. The more
your timeline tells a story without explanation, the better it is.
Its notabout the Bar: In general, the timeline should focus on the relative position of the events in the
story that it tells, not on the date bar. If you are going to highlight a portion of the timeline, highlight the
events themselves, and don't make the date bar the focal point. When was the device invented? When
was it marketed? When did a competing device enter the market? Those can be key facts in a patent
case, and they should be the focus of the timeline. If anything in the timeline should be highlighted with
color or other design elements, it should be these events.
The Key Is Not the Key: Although a lot of people think a timeline needs a complicated legend or key, the
truth is that it should be fairly self-explanatory. Rather than a legend, use logos, icons, company symbols,
or other design elements to explain what the timeline represents.
Keep It Short: Jurors attention wont remain on a timeline that is too long and complicated. Revise and
redraft your timeline so that it focuses on the most important events, not on all events that are
conceivably relevant.
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Keep It Large: Dont make the timeline too small. Otherwise, jurors will lose interest. We think the
timeline should use no smaller than 20-point type.
If you follow these tips, we think you can create a very effective timeline. If you have additional tips or
comments, please use the comments box below.
Here are several other A2L Consulting resources on timelines and litigation graphics:
Trial Graphics: Using Timelines to Persuade
Using Prezi to Make a Timeline
Top 10 Reasons to Prep Trial Graphics Early
Trial Graphics, Color Choice and Culture
The Effective Use of Demonstrative Evidence
A Litigators Duty to Entertain a Jury
3 Year Juror-Litigator Study Results
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Antitrust Litigation Graphics: Monopoly

Power and Price Fixing
Many antitrust cases involve potential damages of hundreds of millions or even billions of dollars. Cases
can arise when one company sues another for violating the antitrust laws and causing economic harm to
the plaintiff, or the government (U.S. Department of Justice, Federal Trade Commission, or state attorney
general) can bring a case seeking money damages, an injunction, and other remedies. Price-fixing
charges can even be brought as a criminal case by the Justice Department.
The antitrust laws prohibit both price-fixing by competitors and monopolization of a market by a single
company, and both of those types of cases can be well illustrated by antitrust litigation graphics.
These cases involve complicated terms and issues such as market power, potential competition, and
market definition that lawyers and economists have argued about for generations. But since they involve
buying and selling, activities that jurors are familiar with, these concepts can actually be illustrated quite
effectively by using analogies from daily life.
In a variety of cases, we have sometimes worked with lawyers who want to show that a company or a
group of companies acted illegally to raise prices and hurt consumers in their pocketbooks, and we have
sometimes worked with lawyers representing clients that are defending themselves against such
accusations.
In the below movie, we portrayed a price-fixing conspiracy as a web, which is something that jurors
understand well and is also a term that is used in the case literature to describe antitrust conspiracies.
After the jurors have seen the web, they then see that it raised prices by a total of $740 million and
caused harm to consumers.
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In the next exhibit, we were attempting to show that Karma lager, a brand of beer, does not have market
power in the beer market. What better way to do this than to show a shopper faced with dozens of
choices in the beer aisle? Jurors see recognizable names there such as Miller, Heineken and Corona
and come to the conclusion that a single player in the market would be unable to act so as to raise prices
above competitive levels without losing customers.
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In the final exhibit, we are illustrating the effects of an illegal bundling scheme perpetrated by a
monopolist. Here, we analogize it to a late-night television commercial for a cleaning product. Not only
does the graphic illustrate the economic principle of reasonable markups versus monopoly prices, but it
also associates the defendant with TV hucksters, not a popular set of individuals in the mind of a juror.
Call in the next 10 minutes and Receive the Patented Fancy Mop at NO Extra Charge!!! is the type of
pitch that many jurors will have heard and disdained. Here, we associate the monopolist in this case with
that type of economic behavior
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Using trial graphics in antitrust litigation is a must. The subjects of economics and mathematics are
intimidating to most jurors and are a fundamental part of every antitrust case.
Many trial teams or antitrust experts/economists inadvertantly overwhelm a jury with one Excel bar chart
after another. I believe this serves only to confuse the jury further -- since after you seen ten Excel bar
charts, they all start to look pretty much the same.
Instead of focusing on bar charts, focus on the drama of the story. You want the jury to trust your client(s)
-- or better yet -- distrust the opposition. Then, use stand-out litigation graphics that sharply contrast with
your bar chart exhibits to highlight the key elements of your case.
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Using Scale Models as Demonstrative

Evidence - a Winning Trial Tactic
When most people think of courtroom presentations, they think of computer-aided graphics like
PowerPoint presentations or movies or of written guides such as charts, graphs, and timelines. They
dont usually think of physical, scale-model creations.
In the appropriate cases, however, physical models or scale models can be extremely convincing to
jurors, especially those jurors who are kinesthetic learners those who learn best from threedimensional objects. Every jury is likely to include one or even two of these people, and it is important to
present information in ways that are suitable to their learning style.
We have built effective models in a variety of case types including patent infringement cases, Hurricane
Katrina cases, and aviation cases.
As Dallas attorney James L. Mitchell wrote in 2003 [pdf] in a paper presented at a litigation and trial
tactics seminar: Scale models which are fabricated specifically for a case . . . can serve an explanatory,
illustrative function which is difficult to duplicate with any other medium. It is important to remember that
even when the model is present in the courtroom, it is still useful to present it with photographs (and/or
slides) or with the use of the courtroom video visualizer. After the jurors look at the model and grasp the
overall spatial relationships involved, they may get a clearer view of the specific areas at issue through a
photograph rather than the model.
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In a major patent case, we helped attorneys for Samsung Electronics Co. Ltd., show how electricity flows
through computer memory by building a 15-gallon, clear plastic water tank. [View full article at right here
on akingump.com - pdf] At issue were Samsung patents for reading the electrical charges in computer
circuitry. Samsungs expert contended on the stand that the way the Samsung circuit was built, electricity
would discharge completely under the proper circumstances. The opposing expert from In Matsushita
Electric Industrial Co. Ltd. disagreed. In a courtroom demonstration, the water in the tank did in fact
completely run out, into a tub on the floor. In a month-long trial, the jury ended up rejecting a challenge
to the patents that had been posed by Matsushita.
In an aviation case, we built models of airplane instruments that were 4 feet by 4 feet in length in order to
show how what happened when the knobs on the instruments were turned: The dials moved as well via a
gear system that we designed and built.
In a patent case involving blood plasmids, we built a set of wooden rings that were intended to show the
composition and relative sizes of various competing products on the market.
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Each of these examples nicely illustrates what is possible when good trial lawyers work with highly
creative people to thoughtfully prepare for trial. As we say -- it is a winning model!
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Presentation Graphics: Why The President

Is Better Than You
Have you ever seen the President of the United States give a
PowerPoint presentation? Probably not. But he's actually quite good
at it, as you will see below.
For at least the past two years, President Obama's team has
created PowerPoint-style presentation graphics that support his
speeches and policies. The work they are doing is excellent and is
relevant to trial attorneys and lobbyists alike.
Below is a White House-created "enhanced" version of the 2012 State of the Union address. It was
broadcast at the same time as the State of the Union address but only on the Web (an asset in wooing
younger voters, who increasingly use only the Internet for news and media). It places the live feed of the
president's speech next to a series of trial-like presentation slides.
In many ways, a State of the Union address is similar to an opening or closing statement. Accordingly, for
the trial attorney, there are many lessons to take from this speech/presentation combination. These
include:
Watch how the President uses emotion-evoking photographs to tell a story. In a mock trial setting,
photographs are normally received very well by the jurors, but many litigators erroneously leave them out
of their opening statements.
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Look at the obvious high quality style of the President's presentation. The fonts used are not standard
Arial or Times New Roman; colors are well chosen; and the presentation seems worthy of the office of
president. Such style in presentation is not reserved for the Commander-in-Chief but is available to
anyone who wants it.
Notice that each slide is simple enough to understand in a moment or two. A common trial mistake is to
try to put too much into a single slide. I urge you to adhere to the philosophy that one slide = one
sentence of meaning (with no conjunctions).
Notice also that the President is using an immersive (i.e. continuous) graphical presentation. A recent
study showed this to be the most effective form of presentation (particularly for persuasion), and I
encourage you to adopt this technique.
Note that the President used roughly 91 slides for a 65-minute speech or about one slide every 42
seconds. That's consistent with the latest research, but part of the reason the President's presentation
was so successful is that he did not need to specifically speak to any of the slides. The graphics spoke
for themselves, which is how such graphics should be designed.
Finally, there are no bullet points! Good graphics don't have them.
The 2011 enhanced State of the Union slides below are similar to those from 2012 above. However, the
differences between the slide decks are interesting. The 2012 speech slides are more refined in style.
There are fewer photos, and there were 23 more slides used in about the same time.
2011 Enhanced State of the Union Address Graphics
View more documents from White House
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The White House has continued its push for information graphics beyond the State of the Union as well.
Perhaps more so than the State of the Union, the White House's use of widely distributed information
graphics (or infographics) for issue advocacy points the way for lobbying efforts generally. The
administration often uses captivating postcard-style information graphics that speak to a single issue.
These are often widely distributed on social networks.
The Obama-Biden campaign's most successful use of an infographic was the one that recently made the
rounds about job growth. Here it is:
This image above has been shared millions of times on Facebook and Twitter. It is similar to
a timeline that A2L might use in a trial format, and it is similar to the work we do in issue advocacy
outside the courtroom. It has been well designed to be shared easily, and I have seen it countless times
on my friends Facebook pages.
The presentation graphic below was released just this week. It does a fine job of responding to criticisms
of the administration's spending. However, if a presidential contest were litigation, this chart would not
likely survive an objection. See if you can spot the issue.
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The 1.4 percent figure is absolutely correct - but only if you use 2009 as the year to compare with 2010,
2011 and 2012. It's a smart technique to use when advocating. In fact, spending in 2009 rose by about
18 percent relative to 2008. Raw data sourced from the non-partisan Congressional Budget Office
(.PDF) is below.
Total Federal Outlays in Trillions of Dollars
2007 - 2.729
2008 - 2.983
2009 - 3.518
2010 - 3.456
2011 - 3.598
I have friends in all parts of the political spectrum, but I have yet to see a Romney campaign infographic
on Facebook. As the campaign goes on, this may, of course, change. Perhaps the Romney campaign
should consider using an infographic similar to that below. This graphic effectively hits back at the
Obama-Biden jobs infographic while calling into question the credibility of future campaign promises.
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Sharable infographics are the new sound bites. Advocates distribute them to their followers who then
share the graphic with millions of people within a few days. Followers use these tools in online
conversations similar to the way one might say flip-flopper, draft-dodger, war hero, patriot, or socialist in
face-to-face conversations. They are a form of shorthand that can be quickly digested.
As is often the case in the courtroom or in issue advocacy, the best presentation graphics distributed in
the most effective ways will likely help one side prevail in this presidential contest.
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Trial Graphics Dilemma: Why Can't I Make

My Own Slides? (Says Lawyer)
By Ryan Flax, Managing Director, Litigation Consulting, A2L Consulting
In a previous article I told you about five surprises I found in moving from my previous position as an IP
litigator to my current position as a litigation consultant. After a few more weeks on the job and a bit more
day-to-day experience as Managing Director, Litigation Consulting for A2L, I find that there is another big
surprise: the amount of thought, time and work that goes into each and every trial graphic.
As an attorney, and particularly one well versed in technology generally and litigation technology
specifically, even I had no idea what really went into the development of top notch trial graphics. Like
other litigators, I had plenty of experience in making presentations and creating PowerPoint slides to help
make my points. But, Ive discovered that there is a huge difference between what an attorney can
create at his desk at a law firm and what can be built by a team of litigation consultants and trial graphics
artists working with that attorney.
Compare this PowerPoint trial graphic (above) produced by our litigation consulting team at A2L with
another trial graphic (below) that Im sure youll agree is similar to what youd produce at your desk at a
law firm (this subject matter is near to my heart as a patent attorney).
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The law firm example slide is clear and straightforward and conveys all the information you need that to
infringe a patent claim literally (not considering the doctrine of equivalents), every limitation of that claim
must be in the accused product (or process). This slide could easily be used in any presentation, for
example, in a client pitch meeting or in an explanatory presentation by an associate to a partner.
Now compare it with the litigation consultant-created trial graphics example at the top. The litigation
consultants' work conveys all the same information provided in the basic text-based slide (i.e., if the
accused product is missing even one element of the claim, theres no literal infringement), but it provides
it as a visually catchy analogy for the jurors -- one theyll never forget). It is persuasive, not just
informative. And it does all this without adding complexity. These additional aspects of the consultants'
slide are what makes it a key to winning at trial.
It may surprise you to learn that its not so easy to take these additional steps in developing a persuasive
presentation. To make this magic happen, a team of litigation consultants (preferably made up of
attorneys, as is our team at A2L) and experienced trial graphics artists devise the best way to present key
evidence or themes graphically and textually to make points with a jury. Visual input, such as that
presented in the bowling slide above, tends to have impact and stick with jurors and helps them make
difficult decisions on contentious points, even when they might otherwise tune out pure verbal/textual
argument.
This extra step constitutes some of the value added by a litigation consulting firm. The very trial graphics
slide you see above (the bowling one, of course) contributed to a major recent win in a patent
infringement case for an A2L Consulting client in Power Integrations, Inc. v. Fairchild Semiconductors
International, Inc., et al., C.A. No. 08-309-LPS (as reported here).
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Patent Comes Alive! Turning Patent

Drawings into Trial Presentations
One of the unusual techniques that we are using in patent litigation trial presentations is something we
call Patent Comes Alive. This process begins with patent drawings and goes well beyond them.
Patent drawings themselves are a unique and highly specialized form of art. Their purpose, of course, is
to illustrate the item to be patented and to show exactly what it is and what the patent applicant is
claiming about the invention. For nearly all patents, the Patent and Trademark Office requires the
applicant to furnish drawings.
That is not all: The Office also requires the drawings to be in a particular form.
Well-known patent blogger Gene Quinn has written that the Patent Office specifies the size of the sheet
on which the drawing is made, the type of paper, the margins, and many other hyper-technical details
relating to the making of the drawings. The reason for specifying the standards in detail is that the
drawings are printed and published in a uniform style when the patent issues, and the drawings must
also be such that they can be readily understood by persons using the patent descriptions.
But these very characteristics that make a patent drawing precise and capable of being relied on in court
can also make the drawing lifeless and impenetrable. Our technique, Patent Comes Alive, takes an
existing patent drawing and animates it, making it understandable to a jury.
In a case involving patent infringement of a paper/CD shredder, for example, we brought the patent
drawing to life by animating it in a PowerPoint presentation. The animation made it easy for the jury to
see not only how the shredder worked but how a competing product infringed upon the patent.
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In another patent case, we started with a patent drawing of a vending machine patent. We looked inside
the machine with animation, showing how it dispenses products.
In yet another patent litigation, we got a favorable outcome for a client in a major case involving coke
drum de-header valves after we took a patent drawing and brought it to life.
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This type of animation is yet another instance in which a skilled trial presentation consultant can illustrate
a highly technical subject and make it easy for a lay juror to understand.
A patent drawing can be daunting and complex to someone who is not an engineer yet basic tools such
as PowerPoint, in the hands of the right courtroom consultant, can make the drawing a relevant and
memorable part of a trial presentation.
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Automobile Litigation: Patent Infringement

and Product Liability
As one can imagine, automobiles are the subject of a good deal of complex litigation these days -whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the
possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a
certain model of car, or another legal issue.
Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly
everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto
mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On
the other hand, todays vehicles are incredibly complicated items with sophisticated computer systems
and electronics.
In 2010, for example, IBM wrote in a press release that due to the exponential growth in the automotive
electronics industry, owning a modern vehicle is equivalent to operating thirty or more computers on
wheels, and that the average automobile now has several millions of lines of code -- more than a space
shuttle.
So jurors do need considerable education about a seemingly basic item like a car.
Since 1995, many of our cases have involved patent disputes about items such as brake parts, valve
stems, engines, wheel parts, window glass, and many other parts of the automobile.
In fact, patent litigation in the automotive industry is as old as the industry itself. A recent article in the
Legal Intelligencer noted that patent litigation in the auto industry dates back to the first days of cars and
discussed patent attorney George Selden, who sued all the early auto makers, including Henry Ford, for
infringing on his patent, which was granted in 1895.
Patent litigation and automobile product liability litigation is very much alive in the industry. The exhibit
below shows the evolution of seatbelts from their introduction as mandatory features in 1964 to the
introduction of emergency locking retractors (ELRs) in the 1970s and 1980s. It was used in a major
product liability case.
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In a case involving litigation over an automotive patent for a valve stem transmission device, we showed
in a brief motion picture (just over one minute) how the device works, using a sensor.
In another patent case, we showed how two sensors work in tandem to activate air bags and how they
respond to frontal, side, and oblique collisions.
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In this Flash interactive exhibit, our information designers created a simple interface that allowed trial
counsel in yet another patent infringement matter to illustrate how an engine and engine braking system
works.
This type of litigation, as old as the automobile itself, is a mainstay of our work.
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Trial Presentation Too Slick? Here's Why

You Can Stop Worrying
In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still
hear litigators concerned that their trial presentation/litigation graphics might somehow look too slick
and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able
to afford fancy graphics.
In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone let
alone a smart phone -- few people had personal computers, and most of those had black screens with
green text.
That is no longer the case. Technology has penetrated into every part of the United States and indeed
into most of the world. A 2011 report from the Pew Research Centers Internet and American Life Project
indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent
own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those
numbers will only increase.
According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use
PowerPoint, with over 30 million PowerPoint presentations being made every day.
Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the
use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory
that jurors are uncomfortable with technology had been blown away by this down home jury. These
jurors were not only comfortable with trial presentation technology they expected to see it.
Today is technology. Thats what its all about, one juror said.
Hear what else these rural jurors had to say below:
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In their Litigation Services Handbook: The Role of the Financial Expert, authors Roman L. Weil, Michael
J. Wagner, and Peter B. Frank write:
Some lawyers and witnesses worry about appearing too slick. They worry that nicely designed and colorful
exhibits or the use of high technology will reinforce the image that the party they represent has substantial
resources and thus does not need to be awarded damages or would have little difficulty in paying them. Posttrial interviews we have conducted demonstrate that this is a needless worry. . . . Jurors often see visual
communication for example, on TV or on their own computers that is superior to anything they see in the
courtroom.
Jurors expect trial presentation technology now. The fear of looking too slick is dead, and it is time to
put it away for good.
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Power Plant Legal Animation and Effective

Information Design
In the 1990's the DOJ/EPA initiated litigation against a large number of coal-fired power plants based on
the New Source Review (NSR) process under the Clean Air Act. Among other things, the NSR process
requires operators of coal-fired power plants to seek EPA review and approval to make modifications to
their plant that would increase emissions. Exceptions exist for routine maintenance at the plant and any
emission increase must also be significant. Unfortunately, Congress neglected to define routine and
significant.
Animators at Law has been called upon to create legal animations and other information design focused
trial graphics in a number of these cases. These cases typically have billions of dollars at stake, and the
more EPA-friendly the current presidential administration, the more cases get filed.
In this two-part post, I want to share portions of a 13-minute animation created for use in opening in one
of these NSR bench trials. We worked on behalf of the power plant operator in this matter, and we faced
a Government trial team who came armed with their own legal animation.
Throughout the history of NSR cases, the Government has taken the position that any big change at the
plant requires EPA approval. This includes large parts that are changed routinely. It turns out, however,
that most parts in a plant this size are large, and the government argues that by maintaining the plant,
one is extending its operating life thus increasing emissions.
The Government opened its case with an animation that compared the size of parts changed during
routine maintenance to elephants, houses and semi-trucks. Our challenge was to make the point that
while large parts were changed, they are relatively small in the context of such a large facility.
We knew two things that were helpful in this bench trial. First, the government was comparing our parts
to semi-trucks. Second, the judge was known to visit the old Busch Stadium where the St. Louis
Cardinals played and where semi-trucks were often parked outside.
The message delivered by the clip in opening was: yes, we
changed big parts, but everything at our plant is big, thus we
must ask, big compared to what? Is a semi-truck really that big
compared to not one Busch Stadium but twenty? I think this
legal animation reflects a good use of information design to
convey scale when billions of dollars where at stake.
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Power Plant Legal Animations and Effective

Information Design (pt. 2)
I will begin by reiterating key elements of the first post in this this two part series.
More than 20 years ago, the Justice Department began filing lawsuits against a large number of coal fired
power plants based on a Clean Air Act provision called New Source Review (NSR). The NSR process calls
on power plant operators to seek EPA review and approval before making modifications to their power plant
that would significantly increase emissions. An exception exists routine maintenance. Since Congress
neglected to define routine and significant, litigation has followed over these definitions.
Animators at Law has worked on many of these cases and created trial graphics and legal animations. I want
to share portions of a 13-minute animation used in the opening of an NSR bench trial in 2003. We worked on
behalf of the power plant owner in this matter. We faced multiple challenges such as:
1.
2.
3.
4.
5.
conveying the scale of the plant;

explaining the plant's operation;
showing how the projects in question were not large;
showing how these projects were in fact routine maintenance;
showing how none of the projects increased emissions.
After the Justice Department opened its case with an animation that compared the size of parts changed
during routine maintenance to elephants, houses and semi-trucks, we had to make the point that while large
parts were changed, they are relatively small in the context of such a large facility. With billions of dollars at
stake, Animators at Law prepared a large number of trial boards and legal animations for the case.
In part one of this post, I shared how Animators at Law compared the size of the facility to Busch Stadium
using legal animations. Below is an example of how we combined technical illustration with a legal animation
overlay to provide an overview of the plant, to explain how the plant worked and to again emphasize scale
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Below is a trial exhibit used in an NSR trial that effectively compared the routine maintenance of the bridge to
the routine maintenance at a coal fired power plant. We think it was a very effective analogy and a leading
environmental publication agreed and remarked on its use.
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Below is another legal animation showing some highly skilled 3-D modeling and animation used in another
New Source Review Case. The 3-D model was used in other legal animations and graphics to explain the
unique geography of the plant.
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Learn About Nuclear Power Plants Through

Litigation Graphics
The world is watching in shock as a nuclear drama unfolds in northeastern Japan. In only a few days,
most of us have somehow come to accept that there are degrees of a nuclear meltdown and that
explosions at a nuclear power plant may not always point to a cataclysmic outcome. A week ago, those
beliefs would have been unthinkable. Then, nuclear power was a binary condition: it was either safe,
clean and efficient, or it was Chernobyl, with no in between.
Even in the safest of times, generating power through nuclear energy presents major challenges. One of
the key challenges is handling the inevitable nuclear waste, primarily spent nuclear fuel. After conducting
extensive studies in the late 1970s and early 1980s, the U.S. Government thought it had found an
answer. In 1983, the U.S. Government contracted with operators of nuclear power plants to begin
picking up nuclear waste starting in 1998 and storing it in a central facility.
The U.S. Government had then agreed to become the primary shipping and storage mechanism for the
nuclear power industry. The plan was to store nuclear waste at the now defunct Yucca Mountain storage
facility located about 100 miles from Las Vegas. Ultimately, fears of geologic instability at the site
combined with election-year politics doomed the project. So, instead of one underground facility located
on the site where 904 atomic bomb tests have already been conducted, America is left with more than
100 storage sites around the country where nuclear waste is stored in pools or barrels.
When the U.S. Government breached their agreement to pick up the nuclear waste, operators of nuclear
power plants sued. In this line of cases, the question is not whether a breach has occurred, but rather
how much it will cost the facility to store the waste if that is even possible. Animators at Law has been
involved in quite a number of these spent fuel cases typically heard in the U.S. Court of Federal Claims.
Below are some litigation graphics from these cases.
The animation below shows the removal of a reactor pressure vessel. When a plant must be closed due
to age or due to an inability to store more waste, the reactor pressure vessel may be removed. The
boiling water reactors at Japan's Fukushima nuclear power plant use a similar reactor pressure vessel.
Originally created in PowerPoint using dozens of technical illustrations played in succession, this litigation
animation shows two methods of removing the reactor pressure vessel that contains the plant's nuclear
core.
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The trial exhibits below are shown as a screen capture of some PowerPoint litigation graphics. These
trial exhibits analogize the problem an automobile service station would have if its used oil collection
stopped to the spent nuclear fuel storage problem faced by nuclear power plant operators. Further, it
helps make the case that costs do not stop with storage (as the U.S. Government contends) but also
include indirect and overhead costs related to storage (e.g. security, accounting and management).
Animators at Law has helped its clients recover hundreds of millions of dollars in spent nuclear fuel
litigation cases, and effective litigation graphics have been key to this success.
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The Redundancy Effect, PowerPoint

and Legal Graphics
By Kenneth J. Lopez, J.D., Founder & CEO, A2L Consulting
After the introduction of PowerPoint 2003, PowerPoint became the dominant trial presentation tool used
by litigators. It has largely replaced printed large format trial exhibit boards in most high stakes cases.
However, PowerPoint also introduced a problem that deserves our attention.
Instead of graphic designers creating well-designed printed trial boards, litigators and their support staff
could now create exhibits on their own. Some did create great presentations, however the vast majority
of trial and corporate presentations came to be dominated by the dreaded bullet point and text-heavy
slides. Comedian Don McMillan covers this and other PowerPoint-related topic best:
What is problematic about the bullet point and text-heavy slides in PowerPoint trial presentations is not
what you might first think. Yes, bullet points almost surely lead to boredom. Sure, they are not a
particularly effective technique for emphasizing key messages. Worse, as Don McMillan notes, it can be
excruciating when someone reads their bullet points and text. However, worst of all is something called
the redundancy effect. This scientifically validated concept is the true enemy of the effective litigator
deploying legal graphics.
In a nutshell, the redundancy effect describes the human mind's inability to process information
effectively when it is received both orally and visually simultaneously. The best known study describing
this effect showed text on screen while a narrator spoke those same words. Comparison audiences saw
or heard the information separately. The study revealed that people retain less information when they
receive it visually and orally at the same time.
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Legal graphics PowerPoint redundancy effect

The message for litigators should be clear. Never read the text on trial exhibits you are displaying for
your audience. Instead:
Talk about trial exhibits and legal graphics diagrams.

Pause your oral presentation and ask your fact-finders to read key text silently.
Dim the screen (just press the B key) and read key text yourself or have an expert read the text.
Focus on presenting diagrams instead of text.
Speak words and don't show them.
Overcoming the redundancy effect may be the easiest change a litigator can make to enhance his or her
trial presentation. The rewards are a greater chance of your fact-finder retaining information and a
corresponding increase in your odds of winning.
More information on the redundancy effect can be found here.
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Semiconductor Patent Litigation Graphics

(What is a MOSFET?)
At Animators at Law, roughly 60% of our work involves patent litigation graphics. These patent cases run
the gambit from light bulbs to software to semiconductors to drug eluting stents. Since a jury is often
called upon to decide the key issues in the litigation they must understand the underlying technology.
There is no substitute for well-crafted graphics in a patent jury trial involving technology. Our firm has
been creating litigation graphics in intellectual property litigation since 1995 often utilizing our former
patent litigators has graphics consultants. While our delivery medium is often PowerPoint, the underlying
graphics or animation are usually created in a more sophisticated illustration software tool.
We routinely use visual analogies as a teaching and persuasion technique. Specifically, we use
analogies that relate complex subject matter to something familiar or easily grasped by the fact-finder.
We have used stadiums to relate scale in a bench trial where the federal judge was a season ticket
holder, the Statue of Liberty to convey the severity of the turbulence and an out of business service
station to explain expenses involving the storage of nuclear waste.
In the patent litigation graphic below, our challenge was to explain a protection MOSFET or metaloxide
semiconductor field-effect transistor. In non-technical jargon, a MOSFET is a switch used to control the
flow of electronic signals. We ultimately needed the jury to achieve a much deeper understanding than
this definition, however, and this meant starting with a basic understanding of how a MOSFET works.
In the movie, you can see that we have used PowerPoint animation and a plumbing analogy to lay the
foundation for an understanding of a MOSFET, transistors and semiconductors. After all, like a valve
attached to your sink, a MOSFET is simply used to control flow.
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Patent Infringement Trial Graphics:

Illustration + PowerPoint
Still think PowerPoint is a trial presentation tool primarily for bullet points and text? Allow me to show you
otherwise!
Like a good salad, PowerPoint is all about the ingredients you put into it. Bad ingredients (e.g. text only,
bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics. Good ingredients (e.g.
technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.)
equal winning trial graphics.
Since the introduction of the 2003 version, PowerPoint has been a go-to tool for patent litigators in claim
construction hearings, tutorials, at the ITC and in patent infringement trials. Out of the box, PowerPoint is
simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide. However, in
the hands of an information designer at a trial consulting firm, it is a powerful tool indeed. Like a master
painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with
true works of information art in the hands of a skilled information designer.
The movie below contains four examples of patent infringement trial graphics created by Animators at
Law. Three of the four examples were created for jury trials or Markman hearings. One example was
built for a 337 ITC hearing. All examples combine technical illustration and PowerPoint animation in a
clever way. The examples are:
A patent litigation PowerPoint animation showing how an MRI image is captured locally and
stored remotely.
An animated patent infringement graphic showing video streaming server technology
Trial graphics showing the patented process by which adipose derived stem cells are created.
Trial exhibits for an ITC hearing showing how a ground fault circuit interrupter works.
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Although presented in video format here, each of these trial presentations was played directly in
PowerPoint. I believe that each of these trial exhibit examples represents the state of the art in patent
litigation trial graphics. By using trial exhibits like these in your next patent infringement trial or Section
337 ITC hearing, a patent litigator will be a more effective communicator, will win more cases and will do
so on a shorter/more efficient trial schedule.
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Trial Exhibits: Using the Document Call-Out

to Persuade
Whether a $5 million trial or litigation involving hundreds of billions of dollars, Animators at Law almost
always uses document call-out trial exhibits as part of its trial presentation. They are a time-tested and
effective tool for highlight key portions of a document in evidence. Sometimes these call-outs are done
on-the-fly in Trial Director by our on-site trial technicians and sometimes these are created using
PowerPoint.
Regardless of the tool used, care should be taken to consider the most persuasive design for the point a
litigator is trying to make. All too often, stock designs that simply highlight black text in electronic yellow
highlighter or faux torn paper tear-outs are used to emphasize key text. Sometimes these approaches
are adequate. Other times, you are missing out on a key opportunity to persuade.
Animators at Law was hired by The U.S. Department of Justice to produce a group of trial exhibits to
defend against injury claims in a rescue helicopter landing. One key case theme required us to
emphasize that it was the duty of the hospital to stop traffic rather than anyone on the helicopter or at air
traffic control. To make this point, we arranged the key call-out language inside a stop sign shape.
When combined with emphasis by the litigator, I believe the message of "STOP" was unforgettable.
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Trial Exhibits: Antitrust, Pharmaceuticals &

Hatch-Waxman Litigation
The passage of the Drug Price Competition and Patent Term Restoration Act in 1984 and its subsequent
amendments (collectively the Hatch-Waxman Act) gave rise to more competition in the pharmaceutical
industry and a new era of litigation. The act itself provides a mechanism for generic drug companies to
quickly gain approval to sell a generic version of an existing brand name drug.
The application that begins the FDA approval process for the generic firm is called an Abbreviated New
Drug Application (ANDA). Brand name drug manufacturers have an understandable incentive to delay
approval of the ANDA. Simply, if the ANDA approval is delayed, the brand name firm continues to enjoy
the lawful ability to sell their brand name drug without a lower priced generic equivalent in the market.
One lawful mechanism brand name manufacturers use that may have the effect of delaying the approval
of an ANDA is the filing of a Citizen Petition with the FDA.
The Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is
not equivalent and thus should not be approved for sale. Should the Citizen Petition be deemed only a
mechanism for delaying approval of the ANDA/generic drug rather than one filed with the public's health
interest at heart, the brand name firm would be liable for antitrust violations.
Such was the question our firm faced when working on behalf of a brand name pharmaceutical firm
recently. A Citizen Petition had been filed and a jury was going to be asked whether it had been lawfully
filed. Were the jury to find that the Citizen Petition had been unlawfully filed with the intent to simply
delay approval of the generic drug, they could possibly award hundreds of millions of dollars in damages.
One quirk in this case that proved advantageous was the fact that it was not the generic drug firm suing
the brand name firm, but instead it was the middleman or drug wholesaler who was alleging antitrust
violations.
Our challenge in creating an effective trial presentation was to create trial exhibits that both taught the
jury and persuaded the jury simultaneously. The trial exhibits shown below were part of an opening
PowerPoint presentation that explained who was involved in the case (i.e. the typical parties/players trial
exhibit) and who was not involved. We sought to emphasize that the brand name firm was being sued
not by the generic drug manufacturer but instead the wholesaler who we painted as the delivery guys in
these opening trial exhibits. The story told is this:
Brand name firms seek approval for a new drug from the FDA;
Brand name firms distribute their product through wholesalers who then sell them to pharmacies;
Generic firms receive approval to sell through an ANDA;
The brand name firm here is BrandName Pharma, generics will be mentioned and then there are
the wholesalers. In this case HatchWax Wholesale Drug;
One would think the generics are involved, but they are not. Only the wholesalers or the delivery
guys are suing. What business do they have suing?
Who is HatchWax Wholesale Drug? They are professional antitrust plaintiffs.
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These trial exhibits shown in video format were part of a PowerPoint created for opening statements.
Scroll below the movie for the impressive result.
Despite a serious threat with potential damages approaching half a billion dollars, our top five law firm
client prevailed with the assistance of our trial exhibits. We received a complete defense verdict and our
client noted about Animators at Law:
"The whole team was incredibly thoughtful, creative and always willing to answer the call.
We would not hesitate to recommend you to any of our colleagues, we had a far better
experience with you than with others we have used in the past (who didn't quite "get" what
we were trying to convey and were always three steps behind us - you guys were
consistently one step ahead)."
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Memorable Markman Exhibits and Patent

Litigation Trial Graphics
A picture is worth a thousand words, and when it comes to effective storytelling, no statement more aptly
applies. One of the biggest challenges attorneys have when telling their story is conveying to their
audience the complex ideas and legal concepts in their case in a manner in which the information will be
understood. Leading up to trial, an attorney is frequently faced with this question: how do I get my
audience to understand information imperative to my case and how do I make it memorable?
One of the key roles an attorney takes on when faced with a legal proceeding is that of a teacher. One
must teach the fact-finders the facts and the laws that apply to the case and why the stated interpretation
of the facts and the laws is the correct one. That is where trial graphics and other trial presentation
techniques come in taking complex case themes and legal concepts and turning them into simplified
visual models that are more easily understood and digestible to the average fact finder.
With this requirement of effective communication of case facts being ever present, graphics and
animations have become vital tools in the modern litigators arsenal. I dare say there are few attorneys
these days that go to court without some type of demonstrative evidence or technology; whether it is
graphics or documents loaded into a trial presentation database.
Many areas of law lend themselves particularly well to the use of graphics. For example, patent litigation
virtually requires the inclusion of memorable trial graphics. The technology in a patent can be (and often
is) very complex. For the non-expert the content is difficult to understand and even more challenging to
explain to the average person who may not have a scientific or technical background. Sometimes the
ability to show a process or a function of a patent - how something works -- as opposed to trying to
explain it with words and documents makes the difference between winning and losing. Such was the
case recently where our firm helped a trial team obtain the 6th largest patent verdict in history.
Illustrative of such visual presentation ideas, I have included a sample PowerPoint Markman claim
construction hearing trial graphic below that portrays a creative use of animation in PowerPoint. This
case involved a patent infringement claim where the plaintiff claimed the defendants were infringing their
patent for automated systems for selecting and delivering packages to fill prescription drug orders.
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The intent of this demonstrative was to reproduce the function of the machine at issue in PowerPoint in
order to visually show how the machine worked as opposed to using documents and the patent to explain
how the machine works.
At Animators at Law, we provide demonstratives that are communicative and educational while also
being stimulating enough to keep the jury engaged. We do this by creating trial graphics that clearly
explain the concepts a trial team is conveying to the jury so that they will understand the facts and legal
arguments of the case through the use of memorable demonstratives that resonate with the jury or fact
finder.
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Trial Consulting: Using Trial Exhibits in

Reinsurance Litigation
Courtroom animation is often indispensable for the purpose of showing jurors how technical processes
work, how scientific principles come into play in a case, or how a legal concept applies in practice.
In addition, by applying trial consulting principles, litigation animation can also be used to keep a jury
engaged and interested. Too often, when a case involves complicated technical issues, the jurors
attention will wander, and even an excellent set of witnesses or a brilliant closing argument will not win
the case, because the jurors just havent been focusing all along.
Ray Moses of the South Texas College of Law made this point well in a comprehensive online guide to
prospective criminal defense attorneys.
Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information
through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how
to use technology to engage the jury. The persuasive force and eloquent power derived from using visual
and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply
cannot be ignored, Moses wrote for the Center for Criminal Justice Advocacy.
An excellent example is the highly complex legal concept of reinsurance. Not every lawyer knows what
reinsurance is, and certainly most lay persons on juries have no idea. (It is insurance purchased by an
insurance company from another insurance company as a means of transferring risk from the first
company to the second company.) A juror, hearing the term reinsurance being bandied about at the
trial, can easily conclude that this is something he or she cant understand or make a judgment about and
can thus close himself out to a lawyers arguments.
Clearly, trial lawyers need a way to keep jurors engaged and involved when complicated financial
transactions involving reinsurance are at issue in the courtroom. These cases can be worth hundreds of
millions or even billions of dollars to the client.
At Animators at Law, we developed a PowerPoint for a trial that helped make a specific reinsurance
transaction easier to understand and that was intended to engage a jurys interest.
In this case, we wanted to show that Washto, a reinsurance company, had created a subsidiary into
which it had placed many of its bad investments. It then transferred those bad investments to Greek Re,
which had acquired Washto, thus saddling Greek Re with the bad investments.
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In the animation, we simply showed Washto dumping sacks of money into a box that represents the
subsidiary. Then a truck hauls off the money to the Greek Re side.
While a juror, upon seeing this brief video, would not gain an immediate and full understanding of the
concept of reinsurance, his or her interest would be piqued by this animation. Obviously, something
involving money was being taken out in sacks by one company and dumped on another company.
Most cases require the use of courtroom visuals in some form. The more complex or dry the material, the
more trial consulting services and graphics will increase the chances that a jury will grasp the facts and
law.
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Trademark Litigation Graphics: Making Your

Best Visual Case
Trademark cases are one type of case that lends itself well to the use of
graphics. That may seem obvious since in most such cases, the object
under dispute is a trademark something that is itself often an item of
graphic design, or at the very least a word or phrase that is easy to
visualize. So one would expect that courtroom visuals would help jurors
a great deal in trademark cases.
This analysis is true to some extent, in that the litigation team will wish
to introduce the trademarks into evidence so that the jury can look at
them and often see some obvious similarities or differences from other
marks.
However, that is not usually where the analysis ends. Trademark law can be surprisingly complex and
doesnt always follow common-sense rules. Trademark trials can turn on esoteric concepts like reverse
confusion, a mark that is found to be deceptively misdescriptive, and similar ideas.
David C. Hilliard, a name partner at Pattishall McAuliffe, Newbury, Hilliard & Geraldson, a top Chicagobased intellectual property law firm, has written that for a trial in which BASF was defending its right to
use the trademark Galaxy for its herbicide [link is PDF], he had planned to use an effective courtroom
graphic. He wrote, For the BASF trial, we had prepared a display board that showed there were 220
Galaxy companies in existence in the midwestern United States. It was strong support for our argument
that one more wouldn't infringe plaintiff's rights any more than the other 220 did. As it happened, the
graphic was not introduced into evidence, but Hilliard would certainly have introduced it under other
circumstances.
In the same article, Hilliard noted that in a case involving infringement of a potato chip packaging
trademark, In Frito Lay v. Bachman, we used a visual display which featured admissions during
discovery by Bachman's president of intentional trademark infringement.
Q: Were you concerned that [your] package would be confused by the public with the more popular
RUFFLES package?
A: Some would confuse it with one that looks like it, yes.
Similarly, at A2L Consulting, we used the graphic below to show that under any circumstance, the
existence of a cheap knock-off brand would not cause post-sale confusion and would thus not have a
significant market effect on a high-end company.
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In the graphic below, we illustrated the principle that the customers of dining establishments, bars, and
hotels overlap and that the infringement of a trademark for one of those types of businesses could lead to
unfair competition with a trademark for another of these types of businesses, thus causing consumer
confusion in the marketplace.
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Legal Animation: Learn About the Four

Types Used in the Courtroom
The art and science of animated trial graphics has evolved dramatically over the past 10 years.
Animation used to refer only to 3-D animations that were produced with programs such as Autodesk
Maya or Autodesk 3ds Max, formerly 3D Studio MAX.
Now a much broader array of animation tools is available to the courtroom animator, and each one has
its own niche and its own strong points. We are able to provide animations of all of these varieties inhouse, and we work with our clients to select the one that is best in terms of persuasive power,
applicability to the problem at hand, and cost. We have done this since 1995.
PowerPoint Animation
PowerPoint Animation has become by far the most widely used type of animation today. Only 5 percent
or so of all courtroom animation 10 years ago, it now amounts to as much as 90 percent today. It is a
flexible tool that is adaptable to many types of cases and many types of illustrations.
For example, this PowerPoint demonstrative illustrates how airbags are designed to deploy in a frontal
collision, a side collision, and an oblique collision. This brief animation uses high-quality technical
illustration along with PowerPoint to illuminate the airbag technology for a patent infringement case.
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2-D Animation
Two-dimensional animation, produced in a program like Adobe After Effects, can also be a very useful
tool. It is quite inexpensive and has an immediate appeal to jurors.
In one case, for example, we provided a brief, sequential 2-D illustration of how the copper mining
process works, from the raw ore to the finished product. When budget is at issue, this type of animation is
ideal for describing complicated information to jurors.
3-D Animation
Three-dimensional animation is particularly useful when small details, rather than broad outlines, are at
issue. For example, in a patent trial where the workings of a toner bottle were at issue, we produced a
graphic that showed the toner bottle in all three dimensions, so that the jurors could understand the
unique technology that permits the toner to move through the grooves of the bottle. Here, a twodimensional representation would not have been adequate to show how all the parts of the bottle work
together. We also used close-up views to show precise details.
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Flash Animation
Finally, we have used Flash animation to present long-form tutorial videos. Often, these are intended for
judges rather than for juries. For example, we often use Flash to build patent tutorial videos that explain
the background of the technology at issue in major patent litigation. Since a great deal of patent litigation
occurs in the Eastern District of Texas, we have created many 30-minute tutorials for judges there that
combine audio and video.
One good example is a demonstration that we provided of the workings of a picking machine in a
hospital that uses both information technology and mechanical technology to translate a physicians
prescription orders to the actual selection by mechanical means of a medicine from an array of drugs.
With animated trial exhibits finding their way into most cases with at least millions of dollars at stake, the
modern litigator must be aware of the four courtroom animation options. Fluency in this language of
animation will result in savings of time and money.
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Securities Litigation Graphics and Juror

Communication
Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in
the stock market or in mutual funds, directly or through their retirement plans, and may have some sense
of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting.
Furthermore, even fairly sophisticated jurors dont have a good knowledge of accounting terms or of
securities law concepts such as causation and fraud, which may have quite different shades of
meaning in the law from their meanings in everyday life.
Thus, it is extremely important to present securities cases, which may involve issues of insider trading,
fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market
works and their day-to-day sense of fairness.
In 2009, Kevin LaCroix, an attorney and insurance executive, wrote on his blog that covers issues of
directors and officers liability, that in a particularly complicated securities case, an attorney referred in his
opening statement to EBIDTA; purchase accounting; debt service; noncash earnings; nonoperational
accounting entries; free cash flow; liquidity; and dividends. Another opening statement cited negative
cash flow; generally accepted accounting principles; and market capitalization, and another referred to
options exercises; hedging and hedging transactions; and tax advantages.
LaCroix concluded, It is not that juries are incapable of figuring out these kinds of things. The problem is
that these kinds of things put an enormous burden on the lawyers, the witnesses and the court to keep
things clear; to avoid letting the trial get bogged down in technical minutiae; and making sure the jury is
neither confused nor bored to death.
We have produced litigation graphics that are appropriate for jurors at all levels of knowledge. One basic
and successful trial exhibit that we prepared simply asks, What Is a Stock Exchange? and responds
that like a supermarket for groceries, a stock exchange is simply a central location to purchase the stocks
of various companies. This is illustrated by a graphic of a supermarket and of the New York Stock
Exchange, with examples of what is offered at each.
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Originally printed as a large format trial board, another of our litigation graphics that answers a more
sophisticated question is composed of 50,000 small dots, each representing the trade of 10,000 shares
of stock. One tiny dot in the vast matrix represents the trades that were the subject of the lawsuit
involving allegedly improper laddering transactions. The caption next to the dot reads, Defying common
sense, this dot would have to affect all others. This caption appeals to jurors sense of logic, and the vast
sea of dots is a memorable image.
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In yet another case, we produced a set of line graphs in PowerPoint to show that over a period of time, a
major investment bank was reducing its exposure to one countrys debt privately, while promoting the
debt publicly. Again, a graphic illustration forms a clear depiction of a basic securities-law principle: One
shouldnt say one thing publicly while doing the opposite in private.
By appealing to a juror's common sense and using litigation graphics, a trial team can persuade even the
most financially ignorant in securities litigation.
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Environmental Litigation Demonstrative

Exhibits and Trial Graphics
In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present
complex scientific information in a way that is easy for an average person to understand. For our litigation
graphics consultants, this is true whether we are helping to represent an alleged polluter against a
landowner or other person who alleges environmental damage, or whether its an insurance coverage
case in which our client is asking an insurer to cover a claim under a business insurance policy.
In many cases, the task is further complicated by the fact that environmental harm occurs over a period
of years or even decades. In such situations, it is crucial to show not only how the damage occurred
initially but how it became more serious, or less serious, over a period of time.
Both sides in a major environmental case usually bring in environmental experts to help explain their side
of the case to the jury. However, these experts are trained in science and engineering, not in information
design, so their testimony, however scientifically compelling, may be presented in a way that is too
complex to appeal to jurors. An astute expert knows that their testimony can be bolstered by the inclusion
of a visual presentation and trial graphics.
Neil Shifrin, Ph.D., a Director at Gnarus Advisors LLC, a leading consulting firm specializing in expert
analysis, litigation testimony and business advisory, says, Clear, graphical presentations of complex
scientific information can be critical to judge and jury understanding. Graphical portrayals are almost
always superior to tabulated information, but the challenge is to keep it accurate while making it
interesting and most pertinent. In court, it is true that a (good) picture is worth a thousand words.
For example, Animators at Law produced a 3-D animation for an insurance coverage mediation. This
showed that one block in a tank had been installed sideways by the property owner. As a result, oil,
solvents and cleaning agents leaked into the spaces between cinder blocks over a period of time.
Because this graphic was intended for a mediation, not a court case, we were free to use a glowing
green color to highlight the pollutants a feature that would have been considered overly prejudicial in a
jury trial under Rule 403.
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In another case, we used a three-dimensional cross-section to show the path that PCE (perchloroethene)
plume took when it was released into the environment and how it ultimately contaminated the bedrock in
the area and the water supply. This exhibit was built in PowerPoint and combines 3-D technical
illustration with PowerPoint to create an animated effect in a cost effective manner.
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Finally, in yet another case our task was to show that a particular piece of land was not a wetland under
the applicable law. We used animated bar graphs to show water levels at test wells. These showed that
groundwater did not stay close enough to the surface for the area to be considered a wetland. The key to
this exhibit was that it was not static in time. It used data taken from several consecutive years to show a
moving water level that at no point reached the required level of one foot.
In each of these examples, complex concepts were distilled down to an easily digestible level using trial
exhibits. Care should be taken in environmental litigation to ensure that any judge or juror can quickly
understand the information being presented.
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Defeating Class Certification with Trial

Presentation Graphics
When a major company is the target of a purported class action filed by consumers who say that they are
representative of a large group that have common claims against the company, the issue of class
certification becomes a crucial one. The viability of the case often stands or falls on the issue of
certification.
Federal Rule 23 imposes four requirements for a class action: (1) the class must be so large as to make
individual suits impractical, (2) there must be legal or factual claims in common, (3) the claims or
defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must
adequately protect the interests of the class. Many states follow the federal requirements or have their
own, similar, requirements.
Whether the case was filed under state or federal law, one of the key practical requirements for a class
action is that the issues that members of the purported class have in common must predominate over the
issues that are distinctive to each specific member of the class.
As is correctly noted in this article describing class actions, in many cases, the party seeking certification
must show that common issues between the class and the defendant will predominate in the
proceedings, as opposed to individual fact-specific issues that can arise between class members and the
defendant.
Graphic demonstrations can be used in many aspects of class actions, and the issue of predominance
is one in which they are particularly helpful. In Stonebridge Life Insurance Co. v. Pitts, we created an
interactive trial exhibit, using PowerPoint, for a hearing to try to defeat class cert in a Texas state court. In
this case, plaintiffs claimed that they had all ended up purchasing insurance that they did not want, as a
result of a telemarketing program run by the defendant that included a negative option. They sought to
certify a class action that would, they hoped, eventually provide restitution of their insurance premiums.
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Our trial exhibit highlighted the important differences between the class representatives, the class
members, and other customers (asserting consumer protection claims). By clicking on hot spots on the
exhibit, the user is able to call up customer quotes that clearly show that different consumers who were
purported class members had distinctly different concerns from each other and thus that the common
issues did not predominate.
It was easy and convenient to have the premiums automatically charged on my Penneys account, one
consumer was quoted as saying. Another said simply, I called Stonebridge and changed my address.
Another said, I received a partial refund.
Without the clear trial presentation graphics that we provided, it would have been difficult for anyone to
understand the wide diversity of experiences and attitudes that members of the supposed class had
actually had. This is another instance in which showing is better than just telling. Class certification
was ultimately defeated.
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Construction Litigation Graphics:

Construction Delay or Defect
Construction cases are among the most difficult for even the most experienced litigator to present to a
jury.
As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has
written on a construction blog, trials involving construction defects, failures to perform up to
specifications, scheduling problems, and similar issues create many practical problems for trial lawyers.
Greenberg notes that jurors often become lost in technical jargon, dont understand the sequence of
activities required to complete a construction project or the relationships and responsibilities of the
various parties, and fail to see why every major construction project is truly unique and cannot be
compared to producing widgets in a factory.
Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he
testified, a jury found that a design professional violated the standard of care, caused a six-month delay
to the opening of a new hospital wing, and was responsible for the need to rework various essential
systems, but was assessed only one dollar in damages by the jury.
Clearly, many otherwise skillful attorneys have often failed to do a good job in persuading juries to award
damages to their clients, even when there has been considerable proof of a significant loss.
We are aware of all these issues and problems, and we have prepared a number of trial presentations
that have successfully set forth a complex set of facts in a way that is appealing and intuitive to jurors.
The Construction Litigation Graphics Showing Construction Delay animation covers months of
construction in less than three minutes, using small boxes to represent panels needed in the project and
to show how many areas were left unfilled during construction. This gives jurors a clear picture of the
delay that occurred in this particular instance.
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In a construction project, delays in one part of the project often have cascading effects and cause
construction delay in the entire project. Jurors often have a hard time understanding the concept of a
critical path a sequence of activities that must be followed in order to get the project done. This idea is
developed on a visual basis in the below overview trial exhibit, Understanding Construction Schedule
Charts. We use standard construction chart flags, colored bars, and other graphic devices to introduce
the subject.
A typical construction defect case, involving an inadequate technique for soil compaction, is clearly
explained in our trial graphic, Actual vs. Recommended Structural Compacted Fill. Here we show
graphically how a building footing was placed on top of unsuitable or uncompacted soils, potentially
leading to serious damage.
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These trial exhibits show the breadth of ways in which we can make complex construction concepts
clearer to juries.
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6 Ways to Convey Size and Scale to a Jury

All good trial exhibits have one thing in common: They are able to appeal to juries by referring to ideas,
principles, objects, or locations that jurors already know about in their daily lives.
For example, a trial lawyer may need to show how large, or how small, something at issue in the litigation
actually is. An effective way of doing this is to relate it to the size or scope of an object with which a juror
has personal experience.
We have prepared many exhibits that work in this manner. Not only do they give the jurors useful
information but they also do this in a manner that jurors will easily recall when it comes time to deliberate.
If we can present something as being as large as a football field, for example, we can lock that picture
into the jurors minds.
1) HOW FAST: In the below graphic that we used in a medical malpractice case, evidence showed that a
radiologist rushed his work and missed cancer diagnoses. He read X-ray films three times as fast as an
average radiologist. What did that mean? Jurors know that speed kills, and a very effective trial exhibit
compared that speed to traveling three times the speed limit on a highway 210 miles per hour instead
of 70. That intrinsically seems reckless.
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2) HOW MUCH TIME: In the graphic below, evidence proved that conspirators in a government contract
dispute in New Orleans had spent 3,548 minutes on the phone. That number by itself would probably
mean nothing to a jury. We translated that fact into a graphic that showed that in 3,548 minutes,
someone could drive from New Orleans to Wasilla, Alaska (an election year reference). In that amount of
time, a lot of conspiring could be accomplished.
3) HOW LITTLE IMPACT: In a securities case, we likened the plaintiffs allegation that a single stock
purchase affected the stock price of a company for 14 months to the notion that a single runners taking
the lead in a marathon for eight minutes affected all 35,000 contestants in the three- to four-hour race.
That defies common sense, and jurors could conclude that the allegation regarding the stock price also
defied common sense.
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4) HOW MANY: In a Miami discovery dispute, we provided a graphic (below) of Pro Player Stadium (the
then name of what is now the citys Sun Life Stadium), with a seating capacity of 75,000. If that was the
universe of all the documents at issue, the number that related to one client was a small portion of one
section of the stadium, we showed.
5) HOW LITTLE: In an environmental case, our exhibit (below) showed that the cleanup costs at issue,
when compared with the companys annual sales, were the proverbial drop in a bucket. That is far
easier for a juror to remember than the numbers $20 million out of $4.4 billion.
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6) HOW MUCH: In this environmental insurance coverage litigation exhibit, the capacity of an
underground tank farm is related to above ground pools. It was a small amount of property and the
capacity of the tanks was surprising when conveyed in this way.
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Trial Presentation Services: Not Just for Big

Defense Teams
by Theresa Villanueva, Esq., Director, Litigation Consulting, A2L Consulting
A common misconception I hear is that trial presentation

services are just for big defense teams who have clients
with deep pockets. This could not be further from the truth.
While, yes it is true that many of our clients are large firms
involved in high stakes litigation, that is just one part of our
client base. We have many small or mid-size firms that we
work with frequently.
The use of trial presentation services is not specific to the
size of the firm or the type of case, but more so to the type
of attorney. The modern litigator has a solid understanding
of the need for trial services. An attorney that understands the value add of demonstrative exhibits, trial
technology, and jury consulting is the type of attorney that is likely to be a client, regardless of the size of
the firm in which they work. Yes, it is true their needs and budgets may be different but there are many
large firms with budgetary constraints as well. Hence, in reality the size of the firm does not matter.
Smaller and mid-size firms utilize the same services as their larger counterparts and are just as likely to
have a case that warrants the use of trial graphics and trial technology services. Small firm does not
necessarily mean small case. Many clients today are looking to the smaller or mid-size firms and even
boutique firms because they prefer the intimate atmosphere and personal touch of these firms. Also,
many smaller or boutique firms specialize in a specific area of law, and hourly rates can be more
manageable without sacrificing the quality of the work.
Attorneys with smaller and mid-sized firms frequently engage us for trial, mediations or arbitrations, as do
larger firms. Moreover, smaller or mid-sized firms use the same if not a more varied array of services.
Not only are they just as likely to engage us for our trial consulting, jury consulting, trial graphics and trial
technology services, they are also apt to utilize e-brief services and more likely to use less common trial
presentation services such as preparing demonstrative exhibits to be incorporated into their trial briefs or
to be used with depositions.
It is the familiarity and desire to reach the audience the drives attorneys to explore and use
demonstrative evidence and technology. The CSI Effect has infiltrated our living rooms, and the
expectations of our legal audience have been set. Thus it is more common than not to see some type of
trial graphics or trial technology in courtrooms today. The savvy litigator recognizes the added value of
consulting services whether a member of a large firm, mid-sized firm, or small firm, and acknowledges
this as part of the litigation process.
As new attorneys graduate and enter the work force, the probability that their educational career has
been based on and dependent on the use of technology greatly increases. These same graduates will
embark on their careers among big and smaller firms alike thus bringing with them the understanding of
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the need to reach the audience visually. The increased exposure to technology increases the likelihood
they will want to teach using some type of technology interface. Add to that the fact that if our up and
coming attorneys have been using technology throughout their lifetime, it is safe to say that their
audience has had the same exposure, and has the same expectation of some type of high tech
presentation.
Trial presentation services are determined for each new case. The scope of the trial (mediation or
arbitration) is assessed, appropriate services are recommended and budgets are set. Frequently we
work with small and large firms to make sure they and their client are happy about the services decided
upon as well as the cost associated for these services. The common denominator is these firms see the
benefit of using demonstrative exhibits and trial technology to help win their case.
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Litigation Graphics: The Power of Checklist

Trial Exhibits
By Kenneth J. Lopez, J.D., Founder & CEO, A2L Consulting
Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional
animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key
issues and in making it easier for them to recall the important elements of a case.
In the trial context, checklists are usually presented as straightforward representations of the factual or
legal elements of a case that can be filled in with a yes or no answer.
These apply accepted principles of human psychology. A good salesperson can often take control of a
conversation by getting a prospect to answer his or her questions with a series of yeses. A great
speaker can engage an audience by using repetition artfully to carry the audience along. Similarly, a
checklist can help make technical points much clearer and can help a judge or jury organize material that
is potentially difficult by breaking it into smaller pieces.
An article published in April 2007 in Champion, the magazine of the National Association of Criminal
Defense Lawyers, discussed a study that tested whether jurors gain a better understanding of complex
evidence related to mitochondrial DNA (mtDNA) if they are given a checklist that guides them through the
evidence by asking them a series of questions.
The study, funded by the National Institute of Justice, concluded that jurors provided with an mtDNA
checklist performed better (on an expanded Jury Comprehension Scale) than those without access to the
checklist. The jurors understood the complex testimony of expert witnesses better if they had a checklist
to break down the issues. Accordingly, the NACDL recommended that practitioners consider using
checklists, among other techniques, to increase juror comprehension.
For example, by paying attention to the medical
malpractice checklist below that we prepared as
a trial exhibit, jurors could easily understand that
the patient experienced the same symptoms
before the alleged malpractice as afterwards
and that damages should not be awarded.
Although tens of millions of damages were
alleged, none were awarded. Listing six different
symptoms and having each one answered in
precisely the same way not only breaks the
evidence down in a comprehensible manner; it
also places the jurors in the habit of answering
in the same fashion for each symptom.
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Similarly, in the checklist below, which we used in a fraud case, we broke out the legal elements of fraud
and of conversion of a corporate opportunity and answered no to the question of whether each one had
been adequately proved. By conceding some "yeses," we successfully earned credibility with the jury.
And the checklist below, which was introduced in a patent invalidity case, breaks down the invalidity claim
involving indoor ice making systems for refrigerators and other refrigerator technologies into a dozen
specific aspects of the technology, making it easier for jurors to understand.
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Aviation Litigation Graphics and Effective

Demonstrative Evidence
Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline
passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by
airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly
what happened on the flight and will properly evoke peoples concerns about flying, without being
improperly inflammatory.
For example, in two high-profile airline trials in the 1990s, using only the technology that was available at
that time, we produced highly persuasive trial animations and other litigation graphics.
In a wrongful-death trial arising out of the tragic crash of ValuJet Flight 592 into the Everglades in 1996,
we produced a 3D animation that synched audio from the cabin, the pilots and air traffic controllers with
the audio transcript and animation of the planes flight.
The well-documented cause of the crash was improperly stored oxygen containers, placed in a cargo
compartment by a contractor, that contributed to a fire bursting through the floor of the passenger cabin
during flight.
We were able to maximize the plaintiffs damages by demonstrating the terror of the three and one half
minutes it took the plane to fall from the sky. The litigation graphics animation is shown here without
audio, as the audio is protected by court order.
These litigation graphics were not intended to depict exactly what happened on the flight as the fire
burned through the floor of the passenger cabin, but rather were designed to allow the viewer to use his
or her own imagination by hearing what happened through the eyes of the crew and the passengers and
by observing the movements of the plane during the last moments of the flight.
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The animation helped secure a very favorable settlement for the client and resulted in the trial lawyers on
the case describing the animation as an extremely important piece of evidence that was well, well
worth it.
In a different type of air accident case, we were instrumental in helping to secure the largest verdict
stemming from airplane turbulence in history. This case arose from a 1995 American Airlines flight from
Los Angeles to New York during which severe turbulence caused the plane to rise and fall 200 feet within
less than one second, throwing passengers from their seats.
In order to effectively depict the traumatic experience that the passengers endured during the 28 seconds
of intense turbulence, we created a 2D animated litigation graphic of an airplane drawn to scale that
moved from left to right, leaving behind its path in the form of a graph, which showed the planes altitude
as the 28 seconds progressed.
In the left hand corner, we superimposed an image of the Statue of Liberty and its measurements, so that
jurors could compare them with the altitude changes the plane made and understand that what the
passengers experienced was essentially like jumping off the Statue of Liberty. The use of the image of
the Statue of Liberty was included in this litigation animation since the case took place in New York.
A jury awarded $2.2 million to 13 plaintiffs in this case -- even though no one was seriously injured. The
award was based almost entirely on allegations that the passengers suffered post-traumatic stress
syndrome stemming from the 28-second ordeal during which they believed they were going to die.
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Trial Presentation Graphics: Questioning

Climate Change in Litigation
In trial presentation graphics, a great deal can depend on the quantity of data that is presented to the jury
and on the way in which it is presented.
For example, it has become conventional wisdom that humans generate pollution in the form of carbon
dioxide, that carbon dioxide and other pollutants cause a greenhouse effect on the planet, and that this
effect noticeably raises global temperatures and/or causes climate change. Al Gore's movie, An
Inconvenient Truth, cemented this belief in the minds of the public and future jurors, largely through the
use of effective visual presentations.
The U.S. Government chart below captures the conventional wisdom well. As large quantities of carbon
dioxide entered the atmosphere with rapid industrialization in the past 100 years or so, global
temperatures went up, it shows.
Because of the recent rapid spread of the conventional wisdom, as illustrated in charts like this one, it
has become almost unthinkable to suggest an alternative. But in the trial context, it can be necessary to
do just that.
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Climate change litigation is making its way through court systems around the world. The targets can be
government agencies or large power companies, especially the coal-fired power plant industry. Should a
jury be called upon to decide such a case, conventional wisdom will be on the side of the plaintiffs. But
the defendants are entitled to show their version of the worlds fluctuations in average temperature
without falsifying facts, of course.
The answer is to add more data that can call into question the conventional wisdom. Changing the scale
of the horizontal and vertical axes can change the climate story.
We believe the above 2.5-minute PowerPoint presentation goes a long way toward making the
defendant's case that global warming of human origin is not a scientific certainty. By expanding the time
frame from 120 years or 1,000 years to 800,000 years or even more, this trial presentation graphic tells a
different story from the conventional wisdom.
In the courtroom, our goal in using such trial exhibits would be to create enough doubt about the plaintiff's
case so that a jury cannot reasonably award money to the plaintiff. Using additional data
from scientifically valid sources and from paleoclimatologists, telling this story in way that creates doubt is
possible.
Our point in creating these trial presentation graphics is not to disprove climate change. Rather, our goal
is to show how even the most skeptical viewer can be persuaded through the use of effective
presentation graphics. Wasn't that part of what Al Gore taught us all?
We are in the business of telling the right story, our client's story. You can almost hear the closing
argument that a defendants lawyer would make: "More data is better, isnt it? Does the other side want
you to look at less data? Do they want to hide the whole truth, inconvenient though it is?
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Trending: Mock Trial Testing of Litigation

Graphics AND Arguments
Many litigators have developed the excellent practice, while
preparing to try a major case, of running all or some their case
before a mock jury and then debriefing the jury to see what
worked and what didnt, and to fine-tune theirtrial presentation
accordingly. A mock trial is an excellent investment of money
and time when the matter is large and significant enough to
permit it. Not only can you test mock jurors reactions to
alternative arguments and themes but also their reactions to
the trial graphics you are considering for trial.
As we found in a now well-known three-year study about the
differences in the way litigators and jurors naturally communicate, more than two-thirds of jurors prefer to
learn visually, and only a very small percentage prefer to learn by only listening. Until recently however,
most mock trials tested only arguments, themes and sometimes some rudimentary demonstrative
graphics. Increasingly however, we are setting up mock trials, testing alternative arguments and themes,
AND we are creating sophisticated trial-ready litigation graphics for BOTH sides of the case. For the
right case, this approach offers a more accurate predication of how the entire trial presentation will be
received. It is a mock trial best-practice.
A major purpose of using visual displays is to prompt an emotional response from jurors. Your mock
jurors can tell you what emotions they felt at the mock trial. They can tell you whether the graphics aided
them in their understanding or decision process. You always want jurors to respond in a positive way to
your arguments: if they did not, this is the time to change the strategy. Perhaps the graphics in such a
case need to be more fact-based than emotion-invoking.
Daniel Cooper, Esq., President of LitStrat Inc., says, Given the powerful visual messaging that many of
my clients develop for their consumers through a process of design, testing, revision and redesign, it is
often surprising that they or their lawyers do not utilize the same process for the design and development
of effective visual messages in the trial setting.
In some cases, this mock trial preparation technique can even help you gauge the strength of the case
based on the mock jurors responses to the graphics and to decide whether to proceed to trial or not.
And you can test the strength of the opponents graphics as well, to see if they are credible in a jurys
eyes. If you are using the graphics simply to instruct the jury, the mock trial will help you know whether
they understood the key concepts as you hoped they would.
When asked about testing graphics at a mock trial, Rick Fuentes of R&D Strategic Solutions commented,
Hopefully you can learn if the visual did the job it was supposed to do -- if the jurors understood the most
important aspects, remembered the more important details later and used them in their decision. You
want to know if the jurors were able to tie the important aspects together and get the message you are
trying to convey.
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A mock trial setting will also give you the ability to test your arguments with and without graphics to
determine what graphics and animations, if any, are needed. In addition, a mock trial can help you decide
what type of graphics to use. Were foam core trial boards enough? Did animated graphics work better
than still graphics, or vice versa? Is 3-D animation needed?
Sometimes, the question is simply whether a detailed graphic presentation is needed or whether it is a bit
much for the client and for the circumstances. Although most jurors expect some sort of technology in a
presentation, sometimes less is more, and you may want to keep the technology more low-key.
Occasionally, theres the danger of seeming too slick, too large and corporate, against an opponent who
can present a David and Goliath scenario.
Dont forget that one of the purposes of using a mock jury (or mock judge or arbitrator) is to test how well
your graphic exhibits, and those of your opponents' will play.
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Demonstrative Evidence & Storytelling:

Lessons from Apple v. Samsung
By Ryan Flax, Managing Director, Litigation Consulting, A2L Consulting
In the Apple v. Samsung trial, the outcome will be the result of good
storytelling and demonstrative evidence, not necessarily the best legal case.
Over the last few weeks, Apple Inc. and Samsung Electronics Co. Ltd. have
viciously fought over patent infringement and other claims (see Apple's
complaint and Samsung's answer [pdfs]), both in the courtroom and in the
forum of public opinion. The case is steeped in patent law and relates to the
alleged infringement and invalidity of utility and design patents. But, it wont
likely be the legal details or attorneys satisfaction of the various prongs of
proving direct infringement or obviousness invalidity that will change the future
of smartphone and tablet computer technology purchasing options for the
foreseeable future.
Yesterday, after closing arguments, the jurors were given their instructions by U.S. District Court Judge
Lucy Koh on the legal nuances of patent infringement and validity, trade dress, contracts, and antitrust
law this took over two hours and covered 109 (yes, thats one hundred nine) pages of text jury
instructions and then sent them away to the jury room to decide the fate of Apple, Samsung, and the
American technology consumer. Im sure that the jurors listened attentively to those instructions, but it
took me most of a semester of law school to fully understand just some of those legal issues, and I
respectfully doubt that those jurors are competently ready to decide the case based on the law.
What they will do is base their ultimate decision on their sense
of justice and upon their emotions. Those jurors brought their
sense of justice with them to the court on the first day of jury
selection, and their emotions have been played by plaintiff and
defense counsel over the course of the trial. Remember, Lady
Justice wields a sword for a reason if youve done something
wrong, you should pay and thats what either Apple or
Samsung will be held to do based on which sides story was
more moving and convincing during the trial.
Experts agree. According to Alexander Poltorak (CEO of the patent licensing and enforcement firm
General Patent Corp.), Juries tend to simplify the case. That's a natural tendency, and They want to
figure out who is the bad guy here and let's punish them. See also our article on demonstrative evidence
and the opening statement.
Complicated Cases Call for Great Demonstrative Evidence

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Bill Panagos (of Butzel Long) called this case extremely difficult and a complicated picture of
intellectual property. He went on to explain that, juries tend to do what they think is fair or right and it
depends now on the story that they heard from each of the attorneys -- which one of those attorneys was
able to tell the story in a way that the jury understands or believes them more than they understand and
believe the other side.
Even Judge Koh expressly and publicly identified this case as a coin toss and urged the parties to settle
the case before a verdict. The Judge went further, I am worried we might have a seriously confused jury
here, and I have trouble understanding this, and I have spent a little more time with this than they have,
and finally, It's so complex, and there are so many pieces here.
This underscores the importance of telling a convincing and persuasive story in court. Jurors want to
reach the right result, so how do you help them do it?
Litigators must be as effective at storytelling as
possible at trial and to do so, jurors must be
reached on an emotional level. To do this,
litigators should test their story and theme with
mock jurors in preparation for trial and take
time to develop effective trial graphics. With
effective demonstrative evidence, also known
as litigation graphics, attorneys can teach and
argue from their comfort-zone by lecturing,
but the carefully crafted graphics will provide
the jurors what they need to really understand
whats being argued and give them a chance to
agree. Most people (remember, jurors are
people) are visual learnersand do most of their
learning by watching television or surfing the
internet. In court, litigators must play on this battlefield and with the appropriate weapons.
Using the Right Demonstrative Evidence the Right Way
In a study, attorneys dramatically improved their persuasiveness when jurors were immersed in
graphics, meaning the attorneys always gave them something to see while presenting an argument.
Immersed jurors were better prepared on the subject matter, felt it was more important, paid more
attention, comprehended better, and retained more information. This is your goal as a litigator to
capture the jurors attention and coax them onto your side.
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Heres a sample graphic used at trial by Apple:
The obvious goal of this graphic was to tell a visual story showing how Apples iPhone design was the
pivot point for Samsungs own mobile phone design in a simple before and after format.
Id say this is a fairly effective graphic. It simplifies a complex issue and makes a dramatic point.
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Samsung countered with its own trial graphic, as follows:
The purpose of this graphic was showcase Samsungs own innovative, but still iPhone-like designs over
the years, both preceding Apples product release and following it.
This graphic certainly has a lot of information, but its not quite as clear and understandable as Apples
demonstrative evidence above. The jurors understanding of this graphic will have depended more on the
attorneys accompanying argument, which is not really the goal of trial graphics.
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Here are some more interesting graphics used by Apples counsel. This first trial graphic accompanied
Apples argument as to how Samsungs user interface infringed Apples design patent on icons.
It is another effective graphic. Its clear and fairly convincing on its own, without any explanation.
Apple also used this demonstrative evidence trial graphic below to explain that, while Samsung designed
an infringing user interface, there are a variety of other ways of making an icon-based mobile device
interface. Apple showed examples of non-infringing alternatives that Samsung did not use.
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Im not so sure about this one. Sure, there may be differences between these designs and those used in
the iPhone or Galaxy devices, but Im not sure this makes a very convincing argument that Apples
design is so special.
If the parties hold out for a jury verdict, it will be interesting to see which side told a better story here. If
the jury believes influence over an industry is illegal infringement, Apple will win. If the jury believes
Apples designs are just the basic building blocks or grammar and language (so to speak) of mobile
device design, Samsung will win.
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Antitrust Litigation Graphics: Explaining

Complex Information Simply
Since antitrust litigation is inherently complex and
juries frequently have to decide antitrust cases,
litigation graphics in these cases are especially
important. Quite often, sums in the nine or even ten
figures can be at issue in a major antitrust case or
corporate executives can be charged with criminal
antitrust violations that can land them in federal
prison if they are convicted.
Antitrust cases can be brought by the government
including the U.S. Department of Justice, which has
the ability to bring criminal antitrust cases; the
Federal Trade Commission; and state attorneys general. They can also be brought by private parties that
allege that they were damaged monetarily by a price-fixing or similar conspiracy, by a merger or
acquisition, or by some other possible antitrust violation.
We work, in different cases, for the government and for corporations that have been accused by the
government or by other corporations or individuals of entering into price-fixing conspiracies, engaging in
cartel activity, or planning a merger or acquisition that is likely to reduce competition in a particular
industry.
Like patent litigation,which in recent years has begun to overlap with antitrust litigation, antitrust cases
require special assistance from those familiar with modern trial presentation and litigation graphics.
Often a conspiracy must be proved by inference because conspirators understandably try not to leave a
clear paper or electronic record of their conspiracy. Accordingly, when we are on the side that is trying to
show that a conspiracy existed, we create convincing antitrust litigation graphics that set forth the time
and participants of key emails and telephone calls from which an illegal conspiracy can be inferred.
Courts have made it clear that juries are allowed to infer the existence of a conspiracy from repeated
contacts between corporations and the corporations behavior at the time. We put that information in front
of a jury in a very convincing way. See these antitrust litigation graphics below:
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If we are on the plaintiff side in a class v. corporation dispute, our work is similar to a criminal antitrust
case. However one obvious difference is that our focus in a civil dispute is on proving causation and
damages, not the elements of a crime. The antitrust litigation graphics below helped establish the
existence of conspiracy by looking at the timing of price change announcements among a group of
competitors in one industry:
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A price-fixing conspiracy often involves a complex web of participants, all of whom are interrelated in
some way and all of whom must coordinate their activities. Our litigation graphics make it easy to
understand how a conspiracy got started, who was involved, and how the various parties are related to
each other.
In cases involving the Hatch-Waxman Act and issues involving the expiration of pharmaceutical patents
and competition between branded drug companies and generic manufacturers, our antitrust litigation
graphics can illuminate a complicated industry and a complex regulatory scheme as below:
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6 Studies That Support Litigation Graphics

in Courtroom Presentations
When we started A2L in 1995, our focus was on educating the
legal market about the value of using visual aids in courtroom
presentations. It may seem hard to believe now, but twenty years
ago, most people did not believe visuals aids would help much
with a jury. As one partner famously said to me in a Paper
Chase-esque voice, "I went to Harvard and Yale, I'm pretty sure
people understand me when I speak."
Since then, the vast majority of litigators have come to realize
that the litigation graphics used in courtroom presentations are
not used to make up for poor communications. Rather, these
visual aids, in the form of demonstrative evidence, trial exhibits,
trial boards, scale models, courtroom animation and trial director
generated visuals are used to increase the likelihood of winning
cases.
Visual aids help win cases for many reasons including 1) nearly two-thirds of jurors (and many judges)
are visual learners who process visual information far better than information delivered orally; 2) people
forget most of what they hear; 3) visual aids simplify cases and speed them up; 4) visual aids are known
to increase persuasion.
Below are 6 studies and articles that support the science behind using litigation graphics and visual aids
of all types in courtroom presentations.
1. The Wechsler Memory Scale (1946): First developed in 1946, this standardized measure of
memory has come to be used to measure everything from the progression of Alzheimer's to juror
memory and retention. It has been used to authoritatively show that people quickly forget about
two-thirds of what they hear. Many studies draw similar conclusions.
2. Enhancing Juror Comprehension and Memory Retention (1989) [pdf]: "[t]rial attorneys
unknowingly present arguments and issues that exceed jurors' capacity to understand. . . . being
confused or feeling intellectually inferior is psychologically uncomfortable, and jurors may respond
with resentment and antagonism toward the presenting attorney. . . . Present as much of your
case as possible using visual aids."
3. The Persuasive Effect of Graphics in Computer-Mediated Communication (1991): Those
exposed to graphics are more persuaded to act than those who are not. The test constructed
here was whether graphics (either static or dynamic) made someone more inclined to pledge a
donation to their alma matter than someone who was exposed to only text.
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4. A2L's Communication Style Study (2003): Practicing attorneys and non-lawyers prefer to learn
and communicate differently. A majority of non-lawyers prefer visual communications. A majority
of attorneys prefer non-visual communications. Thus, litigators must bridge this
communication gap with visual courtroom presentations.
5. Visual Evidence (2010) [pdf]: Visual aids in courtroom presentations enhance juror attention
and recall and improve recall of key events. Charts and diagrams improve comprehension of
quantitative information, and animation improves understanding of a dynamic process.
6. Broda-Bahm Study (2011): We referenced this study in a previous article. It found that an
immersive (as opposed to an occasional or absent) use of graphics during courtroom
presentations yielded the best results.
One cautionary note about vaguely cited studies and especially the often cited 1992 Weiss-McGrath
Report courtesy of Pepper Hedden, a detail-oriented reference librarian in the New York County District
Attorney's Office [pdf pp 27-30]. The results of the Weiss-McGrath study are impressive - a 650%
increase in juror retention when oral and visual evidence are combined. Many in the courtroom
presentations business have cited this study for decades. Google returns millions of results for it.
However, it turns out that the study does not actually exist. Rather, in 1992 an article was published in
the ABA Journal which cited this study. Weiss and McGrath did write an article in 1963 that mentioned
similar results, but they were quoting an 1856 internal corporate presentation and not a study at all. The
1856 reference does in fact note that a study was done, but it is not cited.
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Litigation Support: Making Sense of the

Statistically Significant
A Q&A about using statistics in litigation with David Schwartz, Ph.D., Nathan Schachtman, Esq.
moderated by litigation support specialist Ken Lopez
Recently, we posted an article discussing the effective use of trial

graphics to help win your cases involving statistical principles. In
this prior article, David Schwartz, Ph.D. of Innovative Science
Solutions served as a coauthor, helping us to address some
fundamental principles related to the use of statistics and
hypothesis testing. We ended up the article with a very important
question: What can we conclude from studies failing to show
statistical significance?
In this article, we attempt to address that important concept in a Q&A with Dr. Schwartz and Nathan A.
Schachtman, Esq., an attorney with a nationally recognized legal practice, and who also teaches
statistics to law students at Columbia University School of Law. The session was moderated by Ken
Lopez, Founder & CEO of A2L Consulting, a national litigation support services firm.
*****************************
Ken Lopez (moderator): Nathan, you reviewed the article that David and I posted about using trial
graphics to address some very fundamental principles in statistics?
Nathan Schachtman: Yes, I read your post with great interest; you wrote about issues that are at the
heart of what I teach to law students at Columbia.
Moderator: And what do you think about the value of using the right trial graphics provided by a litigation
support services firm to teach these principles?
Schachtman: When it comes to teaching judges and jurors, I believe that only graphics will allow us to
overcome fear and loathing of mathematics, symbols, and formulae. Trial graphics are extremely
important to any attempt to educate non-scientists and scientists alike.
Schwartz: So, Nathan, we want you to help us understand what we can and cannot conclude from data
that are not statistically significant. Why is that such an important issue?
Schachtman: Statisticians and careful scientists are well aware of the fallacy of embracing the so-called
null hypothesis of no association from a study that has not found a statistically significant disparity. We
see the fallacy in the law where it infects some defense counsels' thinking, and some judges' thinking,
when they actually conclude no association from a statistically insignificant result. An inconclusive study
is, well, inconclusive, and sometimes that is all we can say. Still, even though the burden of proof is
typically upon the party claiming the causal effect, we all are very interested to know under what
conditions we can say there really is no effect.
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Schwartz: So, lets assume we have a study where we cannot reject the null hypothesis. Lets say our pvalue is 0.2?
Schachtman: That is where the problem starts to arise. Essentially, we can conclude little to nothing
from a single study with a p-value in that range. The size of the p-value tells us that a disparity at least as
large as we saw between the expected and observed values could well have been the result of chance,
assuming there was no difference. We say we have failed to rule out random variability as creating the
disparity.
Moderator: Can you give us an example?
Schachtman: Suppose we flip a coin 10 times, and we observe 6 heads and 4 tails. Is this coin
lopsided? The answer is "we do not know." The heads/tails ratio observed was 1.5, and that might be the
best estimate of the correct, long-term value, but our evidence is very flimsy because of random variation.
Schwartz: Why can't we just accept the null hypothesis? Its the most likely scenario; right?
Schachtman: No; no; no. The null hypothesis is set as an assumption, and you can't prove an
assumption by simply assuming it to be true. The nature of much of statistics, not all, is based upon
assuming a so-called null hypothesis, and a reasonable model of probabilistic distribution of events, and
asking how likely is it to observe data at least as extreme as we have observed. In many situations,
when we obtain an answer that the likelihood of observing data at least as extreme as observed is
greater than 5%, we say we cannot reject the starting assumption of no association. Keep in mind that
we are talking about the result of a single study, with the p-value greater than 5%.
Schwartz: Many people scientists and lawyers alike have transformed this probability into the
likelihood of the null hypothesis; havent they?
Schachtman: True, they have done that. Any number of courts, expert witnesses, lawyers, litigation
support services firms and even published, peer-reviewed articles have stated that a high p-value
provides us with the likelihood of the null hypothesis. The mistake is so common, it has a name: the
transpositional fallacy. The critically important point is that the p-value tells us how likely the data (or
the data more extreme) are, given the null hypothesis, and that the p-value does not provide us with a
likelihood for the null hypothesis.
Schwartz: But the null hypothesis is what the Defense is really interested in; isnt it?
Schachtman: The probability of the null hypothesis, or of the observed result, is what everyone in the
courtroom is interested in; no question about it. But our desire for an answer of one type doesnt change
the fact that the p-value in traditional hypothesis testing does not allow us to talk about the likelihood of
our hypotheses, but only about the likelihood of obtaining the data or data more extreme, given the null
hypothesis.
Moderator: Yet people get this wrong all the time, dont they?
Schachtman: Absolutely. Thats the trap that judges, lawyers, and even statisticians fall into. Ive written
extensively about this on my blog (see this post, for example, where I cite many legal cases where
statistical conclusions have been misstated).
Schwartz: Can you give some examples of the types of misstatements you have seen?
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Schachtman: In one litigation that I tried to verdict, the federal judge who presided over the pre-trial
handling of claims said P-values measure the probability that the reported association was due to
chance . See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 289 F.Supp. 2d 1230, 1236 n.1
(W.D. Wash. 2003). The judge who wrote this incorrect statement was the director of the Federal Judicial
Center, which directs the educational efforts of judges on scientific issues. I assure you though that this
was not an isolated example of this fallacy.
Schwartz: So, at the end of the day, what can we say about null data? After all, when there are studies
showing no difference, the Defense should be able to highlight those studies; shouldnt they?
Schachtman: Of course. First, let me note that you have now postulated that there are multiple studies
that show no difference. Remember, the burden of proof is supposed to be on the plaintiff. So, the
defense typically need only show that the plaintiffs cannot prove what they claim. But of course
defendants would like, if they can, to go further and interpret the data as showing no association. So
multiple null studies do form an important part of the Defense case. But the Defense must be careful not
to overstate the conclusions from a single null study. But, as usual, the devil is in the details.
Moderator: What do you mean?
Schachtman: Well, you can actually have a number of different scenarios with respect to null outcomes.
Lets go with the benzene in the fish example that you outlined in your previous blog post. I can think of
three interesting scenarios.
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Schachtman: Scenario 1: A single study, with a good deal of random variability, which fails to reject the
null with extremely low statistical significance (say, p = 0.4).
Scenario 2: A study with a good deal of statistical precision, which fails to reject the null hypothesis, with
marginal statistical significance, say 0.06.
Scenario 3: A series of studies with good statistical precision, each of which fails to reject the null
hypothesis.
Schwartz: Why dont you go through your interpretation of each of the different scenarios you just
outlined. Lets start with Scenario 1, a single, statistically imprecise study, which fails to reject the null
hypothesis.
Schachtman: In this scenario, you essentially know very little more than you did before you did the
study. You have failed to reject the null hypothesis, but because your study had little statistical precision,
the defense cannot really conclude anything about the null hypothesis. To be fair, it would be entirely
inappropriate for the plaintiffs to use this example to further their case either. The situation is almost as if
the study did not exist. It is very much like my example of flipping a coin 10 times, and observing 6 heads,
and 4 tails. We cannot say whether the coin is fair or not fair.
Schwartz: This gets us into the realm of absence of evidence vs. evidence of absence?
Schachtman: Thats right. Technically, the defense has no burden of proof. If the defense chooses to
offer evidence, it may decide to show only that there is no evidence supporting the plaintiffs case.
However, the defense typically wants to go beyond its technical burden and to show that there
is affirmativeevidence exonerating the defendant; that is, the defense often would like to show the socalled evidence of absence.
Moderator: Can you elaborate on that?
Schachtman: If you are going to be statistically correct, you couldnt argue that this study demonstrated
evidence of absence i.e., that Refinery Fish have the same benzene levels as the Control Fish. You
flip a coin 10 times, and get 6 heads or 4 tails, do you have a coin that is unfairly weighted, or a fair coin
that will yield 50% heads over the long haul? The observation of the 10 flips simply doesn't really help us
answer the question. In the example, we simply cant say whether the Refinery Fish have a higher level
of benzene than other fish. We have inconclusive evidence. End of story.
Schwartz: The next Scenario (Scenario 2), a reasonable large, statistically precise study that fails to
reject the null with marginal statistical significance, say p = 0.053?
Schachtman: In this case, plaintiffs may be able to argue that although the study didnt reach statistical
significance by the 0.05 standard, it is reasonable to rely on a slightly relaxed standard and to therefore
reject the null i.e., conclude that the Refinery Fish may actually have higher benzene levels than the
Control Fish. They would highlight that the 0.05 standard is just a convention and that we shouldnt
slavishly adhere to this standard. The difference between the attained significance probability, 0.053, and
the convention, 0.05, is itself not compelling.
Schwartz: And how would the Defense respond?
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Schachtman: The Defense would counter that this is the generally accepted standard and that we need
some sort of bright line cut-off value. The law needs a "test." Certainly in this type of scenario, it is difficult
for the Defense to argue for evidence of absence. The defense will want to argue for absence of
evidence but that becomes difficult the closer the p value is to the conventional 0.05 cut off. If the
association is real, then the plaintiffs should not have difficulty obtaining a p-value under 5% by
increasing their sample size. One question courts struggle with is whether it is reasonable to insist on a
large study to resolve the statistical question.
Schwartz: And the last scenario: a series of reasonably statistically precise studies that each fail to reject
the null hypothesis?
Schachtman: Now we are in a scenario where it becomes much more reasonable to argue that we can
accept the null hypothesis as a reasonable inference from our data. When a hypothesis has been
repeatedly and severely tested, and the tests consistently fail to find no association, there comes a point
at which we lose interest in the claim that there is an association, and we embrace a conclusion of no
association. After looking under my bed many times, with bigger and bigger flashlights, lasers, motion
detectors, and failing to find any communists, I have come to believe that there are no communists under
my bed. I sleep much better, and I stop taking my Xanax. Indeed, we have seen this phenomenon of
repeated, severe testing leading to the acceptance of no association in a rigorous legal and medical
review of the evidence related to silicone breast implants and the risk of systemic autoimmune disease
came to this conclusion [see IOM report].
Moderator: Why is it so complicated? We trial graphics and litigation support firms are in the business of
simplifying!
Schachtman: A bit too much to go into here. But there has been a lot of writing on this issue, going back
at least to the great statistician, Sir Ronald A. Fischer, who refined the notion of significance tests back in
the 1920s.
Schwartz: Sometimes the seminal papers are difficult to get through. Anything more modern?
Schachtman: Actually, Sir Ronald wrote with wonderful clarity, and some of his papers are not burdened
with a great deal of mathematical formulae. There is a statistician by the name of Sander Greenland,
who has dealt with this subject in numerous publications (here is a good example). Of course,
the statistics chapter by Law Professor David Kaye, and a very accomplished statistician, the late David
Freedman, in the latest edition of the Reference Manual on Scientific Evidence, is an excellent resource.
Schwartz: Is there any way to address the ultimate question? Any way that we can tell a judge or a jury
that general causation is so unlikely that it shouldnt be taken seriously?
Schachtman: Actually, the classic hypothesis testing we have been talking about is called the frequentist
model and it was advanced by Sir Ronald Fisher in the 1920s and 1930s. There is a whole other
approach to statistical inference, called Bayesian statistics, which theoretically would allow us to offer a
probability of belief in the existence of an association. Some disciples of Bayesian statistics complain that
the selection of the p-value for statistical significance is arbitrary, but the Bayesian school has its fair
share of conceptual problems, as well. But that is a story for another day. I think the important point is
that the ultimate question of "how likely is there an association" requires a qualitative synthesis of
evidence across studies, and an evaluation of validity within studies.
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Schwartz: And, finally, what about causation? You havent once mentioned causation.
Schachtman: That is a good point. Because the fish study is based upon observational data as
opposed to randomized or interventional studies -- we havent even begun to determine whether we have
a reasonable case for causation or whether bias or confounding can better explain the data. Our
statistical test addressed only random variability or the role of chance.
Moderator: What other factors are there?
Schachtman: The two additional factors we must address are bias and confounding. Bias refers to other
systematic errors, other than random variation, which threaten the validity of the study. Confounding
refers to the presence of a "lurking" variable, which is independently associated with both the exposure
and the outcome. Bias and confounding can mask a real relationship; and they can falsely create the
appearance of an association. We havent even begun to address these. Indeed, bias and confounding
can often be much greater threats to the validity of a scientific inference than the role of chance. Stated
simply, in evaluating causation from our statistical analyses of random variation in observational
studies, we havent even gotten off the dime on evaluating causation.
Moderator: And that would involve what?
Schachtman: Some folks would argue that we would have to analyze the available studies under
guidelines laid out by Sir Austin Bradford-Hill in his famous address to the Royal Society in 1965. These
criteria have come to be known as the Bradford Hill Criteria. Actually, I believe those Bradford Hill
guidelines were pretty good for almost 50 years ago, but today we know much more is involved. But as
with the Bayesian discussion, that is a story for another day.
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9 Trial Graphics and Trial Technology

Budget-Friendly Tips
by Theresa D. Villanueva, Esq., Director, Litigation Consulting, A2L Consulting
It is undisputed that trial graphics, trial technology and
working with trial consultants & litigation graphics
specialists give the modern litigator an edge when
walking into the courtroom. This is true for many
reasons. First, todays juror expects some type of
interactive presentation, whether it is a legal animation
or demonstrative exhibits. Second, trial consultants can
step into the case with a fresh set of eyes and
perspective, and can provide valuable insights into the
key themes that the team has identified and even
sometimes pointing out themes or ideas the team has
not thought of.
In todays economic climate litigation support consulting companies have seen a shift towards a more
economical approach towards litigation. Law firms and their clients (from large firms to solo practitioners)
are looking to keep trial costs under control. With many different options and approaches to trial
presentation graphics and trial technology available today, lawyers and their clients can still head to trial
armed with these essential tools.
Lets take a look at 9 ways you can use trial presentation graphics and trial technology while managing
costs.
1. Focus on Key Trial Themes and a Simple Narrative
One way to keep trial graphics costs low is to choose a small number of important themes that you want
to emphasize and that you want the jury to pay particular attention to. By focusing on these key themes,
you can limit the number of trial graphics to be created. Utilized effectively you can make a significant
impact with even just one or two demonstrative exhibits.
The key here is to utilize your Trial Consultant to narrow the scope of what trial graphics will be created.
This will eliminate the creation of unnecessary graphics and streamline the development process.
See Using a Two-Track Trial Strategy (trial presentation + a solid appeal record) to Win
2. Use Printed Trial Boards and Blow-ups
Using boards in lieu of electronic presentations is a great way to save on costs, and it is still by all
standards a highly effective presentation method. With the introduction of PowerPoint 2003, trial graphics
became more advanced and began to move in the direction of electronic presentations. However, over
the last couple years, the pendulum has swung back in the direction of using trial boards. Today, it is not
uncommon to see a mix of boards and electronic presentation. Boards are a great way to use trial
presentation graphics on a lower budget. Another bonus of using boards is the savvy litigator can
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sometimes find a way to leave the board up throughout trial keeping their message consistently in front of
the Judge or Jury.
See Printed Trial Boards Making a Comeback
3. Receive Training on Presentation Software (e.g. TrialDirector, Sanction or an iPad app)

Having a trial technician on-site is always favored, but the reality is that it is not always feasible from a
budgetary standpoint. One of the great things about trial presentation software is it is user friendly. For a
shorter or smaller engagement the presenter or another team member can receive training from
anexperienced Trial Technician to learn the basics.
Certain situations in which this might be a budget friendly alternative include: shorter trials, smaller
document databases, trial databases that contain no deposition video or databases that will not require a
lot of last minute changes or video editing.
See [Free E-Book] Finding the Best Trial Technician for Your Case
4. Limit Your Trial Database to Key Documents
Similar to developing key demonstrative exhibits, we can build a database of the key documents you plan
to use - whether it is for cross, a particular witness or documents that are crucial to your case.
Sometimes using the Elmo just doesnt have the same impact as having the flexibility and technological
advantage of using presentation software such as Trial Director or Sanction.
See How Indata's TrialDirector Makes Litigators Look Like Stars
5. Have Your Deposition Video Edited and Burned to a DVD
If video is all you need, and editing clips can be done in advance, playing them on a DVD in court is a
great budget saver. In a recent case, I had a client that was on a very tight budget but still needed to
play some video deposition clips at trial. They really wanted to have a Trial Technician or use Trial
Director but cost was a major concern. We discussed several different options including the option to edit
the clips in trial director and export the clips onto a DVD they could play through their own computer at
trial. This was a great solution all around. We still had the flexibility of editing in Trial Director, and the
client ended up with a budget friendly way to show their video.
See Using Video Depositions in the Best Way at Trial
6. Streamline Your Trial Presentation
When trial presentation graphics are needed but budget is limited, you may be faced with the question of
where do I need trial graphics the most? Is there an expert witness with a difficult concept to explain? Do
you need litigation graphics to counter the opposing experts testimony? Perhaps you feel that opening
or closing statement is where you need to make the biggest impression with the judge or jury. If you
know there is one area that is the core of your case, focusing a set of demonstrative exhibits here not
only can not only save on cost it can also add value to your case.
See [Free eBook] The BIG Litigation Interactive E-Book
7. Create Your Own PowerPoint and Use Litigation Graphics Consultants to Polish the Work
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Just as your hairdresser would not recommend cutting your own hair, generally, we do not encourage our
clients to create their own PowerPoint presentations. There is just too much at risk and things can quickly
go awry. However, if cost is a major concern, creating your own PowerPoint and asking for help can be
an economical option. Once you layout out the basics of your presentation one of our consultants will
work with you to enhance the presentation. From something as simple to creating a new template,
formatting each slide for uniformity, or even adding some animation sequences. These, among other
tricks can add a solid finish and give your slides the polished look they need.
See [Free eBook] The Trial Team's Guide to Creating Great Timelines for the Courtroom
8. Have a Trial Tech on Certain Key Trial Days
In many instances it is essential to have a Trial Technician on-site with the team, but the team just does
not have the budget for a trial tech to be on-site for the duration of the trial. Perhaps there is one witness
that will truly benefit from the interaction of using an electronic presentation, or maybe there is an
opposing witness you know you can impeach with video clips from their deposition. On these occasions
having a trial technician there only for certain stages of the trial can be a huge cost savings for the budget
conscious team, while still benefitting from a Trial Techs expertise.
See Free Guide to Finding and Engaging the Best Trial Technicians
9. Keep Litigation Graphics Simple - No Courtroom Animation
One of the cost drivers in the creation of demonstrative exhibits can be the addition of animation or
making a piece of the graphic move. Some animation such as building in certain elements is very
simple and does not necessarily drive cost up. However, complex animation can be very time
consuming, require more edits and can lead to higher costs. One way to avoid this is to have Litigation
graphics with little to no animation. It is very easy to get caught up in the idea of using legal animations
in presenting your case, but a non-animated trial graphic can have just as much of an impact on your
audience.
See A2L's Complimentary Biggest and Best E-Book for Trial Attorneys
If cost is a concern, demonstrative exhibits and trial technology no longer have to be the first items
to scratch off your list you simply need to work with the right trial consulting firm who will find the best
solution for your team and budget.
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4 Tips for Using Trial Graphics in Motions

and Briefs
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also
be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are
using graphics to make your argument or tell your story at trial, why not use them at an earlier stage to
make your argument convincingly in your brief?
In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use
at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge
is to the use of trial graphics in the case.
Here are some tips for using graphics in your brief:
First, keep it simple. The judge is, after all, reading a document, and the images need to be easily
incorporated into the document. Motion pictures and similar animations obviously wont work well -unless of course you are submitting an e-brief.
Second, consider the amount of space you have to work with. The image needs to fit into the space
appropriately.
Third, using color is OK; just because a trial graphic is embedded in a court document doesnt mean it
has to be in black and white.
Fourth, using trial graphics to simplify a complex aspect of the case is one of the best possible uses.
Trial graphics can effectively be used to illuminate motions in a number of areas of law, including
bankruptcy, patent litigation, and litigation involving highly technical areas of scientific research.
In the first example below, the issue regarding the patent was the curvature of the rails in the equipment.
As a portion of the case itself involved graphics in the form of the geometric curve, the curvature was
hard to explain verbally but was much easier to delineate in a sketch.
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Second, in a bankruptcy matter, a law firm needed to explain the Continuous Linked Settlement (CLS)
system that was carried out by CLS Bank to provide settlement services. The CLS settlement process is
very difficult to explain, so we developed a series of graphics for use in a brief that explained the
settlement and clearing process.
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Finally, in a pro bono assignment that we undertook involving the interpretation of a prohibition on the
use of federal funds for stem-cell research, a key issue emerged regarding the definition of the term
research in an amendment passed by Congress.
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Through a series of graphics that were incorporated in a memorandum in opposition to a motion for
summary judgment, we illustrated our clients position that the term research can be conceptualized in
many different ways and that the opposing brief, in selecting just one of those interpretations, was
interpreting the term arbitrarily.
In Figure 1, for example, we showed that stem-cell research can be defined as separate from the
derivation of embryonic stem cells and is not identical with the derivation process. In Figure 2, we showed
that the opposing brief was trying to group stem-cell research and the derivation process together, a
conclusion that was not justified by the statute. And in Figure 3, we showed that it is even possible to
interpret the term research to encompass an entire area of inquiry, thus preventing federal funding of a
whole type of research in a way that Congress could not have intended.
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139
12 Reasons Bullet Points Are Bad

(in Trial Graphics or Anywhere)
Bullet points, especially when theyre found in PowerPoint slides, have
become the clich of the trial graphics and presentation worlds.Theres
no good reason to use them, and plenty of reasons not to.For
many, bullet points signal a boring presentation is about to begin or one
is about to hear a presenter who, like someone on a vintage cell phone,
is detached from modern presentation style.
Bullets are not just aesthetically bothersome. The A2L Consulting trial
graphics team, trained in cutting-edge theories of conveying information,
believes that text-heavy presentations riddled with bullet points also do
harm to the persuasion process.
Garr Reynolds, a leading writer on the art and science of presentation,
says in Presentation Zen, Bullet-point filled slides with reams of text
become a barrier to good communication.
Chris Atherton, a cognitive psychologist who has scientifically studied bullet points, writes, Bullets don't
kill, bullet points do.
Attorney Mark Lanier, commenting on his $253 million Vioxx verdict after following the no-bullets advice
offered by Cliff Atkinson, another top presentation theorist and author of Beyond Bullet Points, said, "The
idea that you could speak for 2 1/2 hours and keep the jury's attention seemed like an impossible
goal, but it worked. The jury was very tuned in."
Below is a list of reasons and resources that support the reality that bullet points do not belong in your
presentation whether a trial graphics presentation or something else.
1. People read faster than they hear -- 150 words per minute spoken vs. 275 words per minute reading.
People will read your bullets before you can say them and stop listening. If jurors are spending time
(and brain-power) reading your trial graphics presentation, they are not listening.
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2. Chris Atherton's work confirms that bullet points do real harm to your presentation. Her scientific
study validates the notion of eliminating bullet points and she lectures on the topic in this video.
3. The redundancy effect describes the human minds inability to process information effectively when it
is receive orally and visually at the same time. If you speak what others are reading in your bullets,
because of the redundancy effect, you end up with less comprehension and retention in your
audience than if you had simply presented either 100% orally or 100%
visually.http://www.a2lc.com/blog/bid/26777/The-Redundancy-Effect-PowerPoint-and-Legal-Graphics
4. Authorities on the subject agree bullets are problematic. Read Presentation Zenor pick up Garr
Reynolds' tips in the video below. Also see herehttp://beyondbulletpoints.com/and
here:http://sethgodin.typepad.com/seths_blog/2007/01/really_bad_powe.html
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5. Watch great presentations and see what they are doing right (and note that they do not use bullets).
Here are three stand-out and bullet-point-free presentations:
Hans Rosling's TED Talk presenting data in an appealing way.
Steve Jobs introduces the first iPhone in 2007.
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Al Gore revisits his Inconvenient Truth theories.
6. The more you use bullets the more people will judge you as outdated. If you are making a trial
graphics presentation and your case relates to technology, this is unforgivable, but for any case this
will not be helpful. Remember Chris Atherton's work from point 2 above.
7. If you are using bullets to talk about numbers, there is usually a very easy workaround. For example,
here is an easy way to handle changing metrics:
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and an easy way to handle dates:
8. Understand how the brain works. Developmental Molecular Biologist Dr. John Medina explains briefly
one of his 12 "brain rules" from his book of the same title. Here, he explains that vision trumps all
other senses and pokes fun at bullet points in the process.
Vision from Pear Press on Vimeo.

9. Whether most of your presentations are for judges and juries or whether they are for management,
learn how to tell better stories; take a look at one of our most popular articles: articles
http://www.a2lc.com/blog/bid/53536/10-Videos-to-Help-Litigators-Become-Better-at-Storytelling
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10. Remember, if you are using bullet points, people are likely to tune you out as boring when you most
want them to be paying attention.
11. Consider using Prezi instead of PowerPoint as we explained in this popular post, and illustrated in
A2L's well-circulated Prezi sample that explains Collateralized Debt Obligations (CDOs):
http://www.a2lc.com/blog/bid/40453/Beyond-PowerPoint-Trial-Presentations-with-Prezi-and-Keynote
Collateralized Debt Obligations (CDOs) Explained with Prezi on Prezi
12. Finally, while A2L Consulting would be thrilled to help, here are 74 ways to remove bullet points on
your own.
a.
b.
c.
d.
6 inspiring non-bullet point options

41 great alternatives to bullet points
4 before bullet point and after bullet point examples
4 great before and after bullet points from Garr Reynolds (see slides 5 through 8 - although his
entire presentation is helpful)
e. 7 ways to replace bullet points altogether
f. 12 more ways to avoid bullet points
We believe that a well-crafted presentation -- whether in trial graphics or in the corporate world -- will
change the way people make decisions. Regardless of your audience, there is something you want from
them. Make your presentation the best it can be using the latest techniques.
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Using Trial Graphics & Statistics to Win or

Defend Your Case
This article is coauthored by A2L Consultings CEO, Kenneth J. Lopez, J.D., a trial
graphics and trial consulting expert and David H. Schwartz, Ph.D. of Innovative Science
Solutions. Dr. Schwartz has extensive experience designing programs that critically review
the scientific foundation for product development and major mass tort litigation. For 20
years, he has worked with the legal community evaluating product safety and defending
products such as welding rods, cellular telephones, breast implants, wound care products,
dietary supplements, general healthcare products, chemical exposures (e.g., hydraulic
fracturing components), and a host of pharmaceutical agents (including antidepressants,
dermatologics, anti-malarials, anxiolytics, antipsychotics, and diet drugs).
[See also follow-up article discussing the null hypothesis]
Many of us have been there in the course of a trial or hearing. An expert or opposing counsel starts
spouting obscure statistical jargon. Terms like "variance," "correlation," "statistical significance,"
"probability" or the "null hypothesis." For most, especially jurors, such talk can cause a mental shutdown
as the information seems obscure and unfamiliar.
Its no surprise that talk of statistics causes confusion in a courtroom setting. Sometimes, a number can
be much higher than another number and yet the finding will not be statistically significant. In other
instances, a number can be nearly the same as its comparison value and this difference can be highly
statistically significant.
Helping judge and jury develop a clear and accurate understanding of statistical principles is critical and
using the right type of trial graphics can be invaluable.
Lets demonstrate this by way of example.
Suppose we want to know whether a petroleum refinery increases the level of benzene in fish that inhabit
the coastal waters near the refinery.
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The hypothesis is that the benzene level in the coastal fish near the refinery (the Refinery Fish) is higher
than the benzene level in off-shore fish that live in waters far from the refinery (the Control Fish).
Because we can never collect every single fish and measure benzene levels in all of them, we will never
know the precise answer to the hypothesis (not to mention the fact that if we did, the study would be
irrelevant because there would be no more fish). But we can sample some of the fish near the refinery
and then compare the benzene levels in these fish to a sample of fish collected from the middle of the
sea. Statistical techniques are a clever tool that we use to answer the research question, even though we
haven't measured all the fish in each location.
Unless one is trained in statistics, the evaluating might appear easy and straightforward. Simply compare
benzene levels in the Refinery Fish sample to the benzene levels in the Control Fish sample and see
which is higher. But what if our sample only reveals a very small difference between the benzene levels
in the Refinery Fish sample compared to the Control Fish sample? How do we know if that difference we
observed in our samples is a real difference (i.e., potentially due to a causal relationship with the refinery)
or whether it was simply due to our sampling techniques (i.e., due to chance)? Statistical techniques
provide us with a way to properly interpret our findings.
An overview of well-established statistical techniques surrounding hypothesis testing is in the trial graphic
below:
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While this graphic is somewhat oversimplified, it does provide the basic steps that are taken in the
hypothesis testing decision tree.
Although imperfect [pdf], a criminal case serves as a useful analogy to help understand how statistics
work. In a criminal case, the defendant is assumed to be innocent unless proven guilty beyond a
reasonable doubt. In statistical terms, the overall trial can be likened to statistical testing of a hypothesis
(i.e. did he do it?), and the presumption of innocence can be likened to the "null hypothesis." Like the null
hypothesis, the starting point in a criminal trial is that defendant is not guilty, and in statistical terms, that
the connection you've set out to establish is just not there. The trial graphics below provide an overview
of this concept. Again, this is an imperfect metaphor and is subject to criticism from a pure statistical
vantage point. Neverteless, it provides some assistance to the novice in clarifying the fundamental tenets
of hypothesis testing.
Returning to our refinery hypothetical, we form our null hypothesis.

In this case, the null hypothesis is that the Refinery Fish are exactly the same as all the other fish in the
ocean in terms of benzene levels specifically, that they come from the same population. Succinctly,
the null hypothesis is as follows:
Null Hypothesis
There is no difference in benzene levels between the Refinery Fish and the Control Fish.
In our study, as in all scientific studies, we will be testing how likely it is that we would obtain dataat least
as extreme as our data if the null hypothesis were true. In other words, we will be evaluating the
conditional probability of obtaining the data that we observe.
In plain English, proper statistical testing means assuming your hypothesis is wrong and then evaluating
the likelihood that you would come up with the findings that you did. Statistical testing is not about
proving things true. Rather, it is about proving that the alternative i.e. your null hypotheses is likely
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not true. Only then can we reject the null hypothesis and conclude that our research hypothesis is
plausible.
Determining whether or not it is reasonable to reject the null hypothesis is done by collecting data in a
scientific study. Here, we start by measuring benzene levels in two samples of fish: (1) a group of fish
near the refinery (Refinery Fish); and . . .
(2) a group of fish in the middle of the ocean, nowhere near the refinery (Control Fish).
We will then calculate an average benzene level in each group of fish, which will serve as a reasonable
estimate of the benzene level in each population of fish (i.e., all fish living near the refinery and all fish not
living near the refinery). Of course, how we take our samples is a critical component of the study design,
but we will assume for this example that we have used appropriate sampling techniques.
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Let's examine 3 possible outcomes in the trial graphics below. The first possibility will deal with an
obvious result.
In this example, let's assume that every fish in the Refinery Fish sample had a benzene level of 10, and
every fish in the Control Fish sample had a benzene level of 1. Thus, the average Refinery Fish benzene
level is 10 and the average Control Fish benzene level is 1. When we do our statistical test, we calculate
the conditional probability i.e., the probability that we would have obtained this dramatic difference (10
vs. 1) given that the null hypothesis is true. This probability is called a "p value."
In this case, the p value is so low (let's say: p = 0.00000001) that we reject the null hypothesis. Stated
another way: The probability of obtaining such extreme data if the null hypothesis were true is
0.0000001.Based on this analysis, it doesnt make sense to believe that we would have obtained these
results if the null hypothesis were true. So we reject the null hypothesis.
Our study was a success. We reject the null hypothesis, and we draw a clear-cut conclusion -- i.e., the
Refinery Fish come from a different population of fish with respect to benzene levels. So we conclude
that the refinery, absent other factors, may have something to do with the benzene levels in these fish.
Because this difference was so clear-cut (every single fish in the Refinery Fish sample had extremely
high benzene levels and every single fish in the Control Fish sample had extremely low values), we didnt
even need statistics to get our answer.
Now let's look at another, more realistic, possibility. This time the difference between the two samples is
a little less clear cut.
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In this example, the average benzene level in the Refinery Fish sample is 8 and the average benzene
level in the Control Fish sample is 3. When we do our statistical test, we learn that the p value is 0.02.
Said another way, the probability that we would have obtained these findings, given that the null
hypothesis is true, is about 2%.
Thus, as with the extreme example above, the probability of obtaining these findings, given that the null
hypothesis is true is very low (not quite as low as in the prior example, but still pretty low). This raises the
question: how low a probability is low enough?
Traditionally, statisticians have used a cut-off probability level of 5%. If the probability of obtaining a
certain set of results is less than 5% (given the null hypothesis), then scientists and statisticians have
agreed that it is reasonable to reject the null hypothesis. In this case, we reject the null hypothesis and
conclude that the Refinery Fish must come from a different population than the Control Fish. Again, as
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with the earlier example, we conclude that the refinery must have something to do, absent other factors,
with the benzene levels.
So far, so good. Now, let's do one more. This time let's assume that the difference between the Refinery
Fish sample and the Control Fish sample has gotten much smaller.
In this example, the average benzene level in the Refinery Fish sample is 5 and the average benzene
level in the Control fish sample is 4. The benzene levels, on average, are numerically higher in the
Refinery Fish compared to the Control Fish. But are they statistically higher? In statistical terms, how
likely would it be to obtain these findings if all the fish were the same with respect to their benzene
levels? In other words, is it reasonable to conclude we would have obtained findings this extreme if the
refinery had nothing to do with the benzene levels?
When we do our statistical test, we learn that the p value is 0.25. Thus, the probability that we would
have obtained findings this extreme, given that the null hypothesis is true, is about 25%. One in four
times that we take these samples, we will get findings like this if the null hypothesis is true.
A twenty-five percent chance is not so unlikely. It certainly doesn't meet the 5% cut-off rule (i.e., less than
5%). Therefore, statistical best practices tell us that we cannot reject the null hypothesis.
But what does it mean when we cannot reject the null hypothesis? Can we conclude that the null is true?
This is actually a critical question, and it represents an area where statistics often get misused in court, in
trial graphics, in the media and elsewhere. And what about other intervening factors like bias and
confounding?
Our next posts on using trial graphics and statistics to win or defend your case will grapple with these
important questions. Please do leave a comment below (your email address is not displayed or shared).
[See also follow-up article discussing the null hypothesis]
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Trial Graphics in Patent Litigation 11 Great Demonstrative Tips

There are good reasons that more than half
of A2L Consulting's trial graphics and litigation
consulting work is related to patent law: 1) patent cases
typically involve complex and technical subject matter
that must be explained to non-technical judges and
jurors, 2) the cases frequently make it to trial because
settlements are often more difficult to craft in patent
cases, and 3) patent cases may often have hundreds of
millions or even billions of dollars at stake (which is
another reason they dont settle).
I've put together this article to let patent litigators, like myself, know what resources are available to them
at our firm. Frankly, these are things I wish I knew when I was tasked with hiring a trial consultant, trial
graphics firm,or trial technician while I was actively litigating patent cases.
Here are 11 things you should consider when involved in patent litigations, including several trial graphics
and litigation consulting resources on A2L Consulting's site. I hope you find these valuable.
1. Hire your patent trial graphics experts early enough for them to be helpful. There are many phases of
patent litigation where you would be well served to have a litigation consultant and graphics firm on
board. Markman briefing and hearings are the most obvious, but also consider using graphics with
your summary judgment briefing, Daubert motions, motions in limine, and appeal briefing (have your
demonstratives entered into the record for this).
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2. Thoroughly understand your judge and his court. Know the local rules, particularly if there are special
patent rules (as there are in the E.D. Tex and N.D. Cal). Know what the courtroom has to offer in
terms of presentation technology do you need to supply a projector or screen? Know your judges
preferences for the use of demonstrative exhibits (note, the judges position may change
from Markman to trial settings). Set a favorable schedule (for you) relating to demonstrative exhibit
exchange and objections if you have a great graphics team, plan on exchange just a few days or
one day before their use and a day to object. For all these things, enlist the aid of an experienced and
successful local counsel, preferably one with a lot of patent litigation experience and a good
relationship with the court.
3. Download and read The Patent Litigator's Trial Graphics Toolkit. It is a free e-book with great tips and
articles, many of which are shared individually below.
4. Relatedly, download and read A2L's largest e-book to date that was just released, The BIG Litigation
Interactive E-Book. In it, youll find many great tips, not limited to patent litigation.
5. There are many excellent patent-related articles on A2L's litigation blog, The Litigation Consulting
Report. They primarily discuss trial graphics, jury consulting, leading litigation teams and using
courtroom technicians. I would encourage you to subscribe to the blog so that you are notified when
new articles (like this one) are published. I frequently publish blog posts there, and my favorite subject
is patent law. Here is a subscription link and here is a shortened link you can use or cut, paste and
send to a friend: http://a2.lc/BlogSub
6. Read: Perfecting the Patent Litigation Trial Graphics Tutorial for Your Judge As you know, a good
tutorial can color the entire trial and has the potential to influence the claim construction. We used
one in each of my concluded Saffran litigations against Boston Scientific Corp. and Johnson &
Johnson, made by A2L. They were effective and seemed to help us be more persuasive during claim
construction.
7. Read: Preparing Trial Graphics for ITC Hearings Creating trial graphics for this face-paced jurisdiction
is a must, and this article provides a good introduction from other patent litigators who have practiced
before the ITC.
8. Read: Explaining Patent Claim Language Using Trial Graphics How do you intend to make the jurors
understand what comprises what and what the said second surface being adjacent to the first
surface means? Use graphics its a no-brainer.
9. Read: Teaching Science to a Jury Using Trial Graphics See No. 8 above.
10. Read: Making the Complex Understandable in Pharmaceutical Cases Using Trial Graphics Again, its
hard to explain something technical that took you two years to fully understand yourself to your mom
and dad, but thats essentially what you need to do at trial. Using trial graphics will help, a lot.
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11. Watch: When I was litigating patent cases, I had a chance to use other trial graphics consultants and
then use A2L. My perspective will perhaps not be surprising since I choose to join the A2L Consulting
team, however the differences between our firm and others are vast and worth hearing about. I am
also curious if you have had the same challenges that I did. I invite you to leave a comment below
or contact me.
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Printed Trial Boards Making a Comeback?

It's Courtroom Deja Vu!
Electronic presentation tools such as PowerPoint and Trial
Director have changed the way in which lawyers and trial
consultants present evidence to juries. These programs and
others like them are so flexible and helpful in presenting
numerical data, timelines, biological processes, the workings
of machinery, and other information that in many ways they
have displaced the old-fashioned methods such as printing
words and graphics on foam core trial boards.
However, I believe that the printed and mounted foam core
trial board is making a comeback and should return to the
arsenal of trial presentation tools used by litigators if it ever
left at all.
After all, the purpose of any trial exhibit is the communication of information. The precise medium of
communication is secondary. Any trial exhibit is designed to represent information that is relevant to the
case in a way that fosters a believable and lasting impression with the judge or jury.
While most of our exhibits are electronic these days, we are still, in the appropriate cases, presenting
exhibits on foam core where the situation calls for it.
When A2L was founded 16 years ago, we would go to court with hundreds of 40 inch by 60 inch trial
boards for a single trial. Every document call-out, every photo and every other type of exhibit was printed.
Rare was the use of electronic evidence. That changed gradually over the years, and now jurors, in every
kind of complex case, in every region of the country, have come to expect to see fairly sophisticated
electronic evidence in the courtroom.
Now, it is the trial board which is rare. Like a miniature poodle in a group of dogs of ordinary size, or a
handwritten, signed letter in a sea of emails, a trial board stands out.
To a jury, a board is not something they are used to seeing. So when they see it, they pay attention to
this special thing that has been crafted for them.
Foam core is a type of material that is ideally suited for trial boards. It consists of an inner layer of
polystyrene with outer facing of white clay-coated paper. Trial exhibits are printed on a large format
printer and mounted onto the foam core board. Optionally, they can be laminated to give the board a
more finished look and additional strength. Printed trial boards can be easily displayed for viewing by
judges and juries and will stand up to repeated handling, yet they are not overly expensive.
We now advise our clients to use foam core boards to draw attention to the key messages in their case.
To us, documentary evidence is like the words of a sentence, demonstrative evidence is like the
commas and trial boards are like the exclamation points.
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To see more examples of our trial graphics click here.

To download free litigation consulting and trial consulting materials click here.
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Demonstrative Evidence: Simplifying

Technical Cases or Patent Cases
One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly
complex and technical issues understandable to the average juror who does not have a scientific,
engineering or technical background. In technology cases, especially patent cases, using demonstrative
evidence is normally a good tactic. Here's why.
The trial lawyer has spent months or probably years delving into every aspect of the case, and by the
time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that
doesnt mean they are easily understood by the general population of which the men and women in the
jury box are a representative sample.
Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it
takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to
all audiences.
Similarly the trial lawyer, assisted by a litigation consulting firm such as ours, needs to simplify the subject
matter without losing its essence and without seeming to talk down to the jury. The way to do that is to
present the scientific or technical material in a way that is at the same time dramatic and fully accurate.
The jurors should be given the ideas behind the evidence in a broad sense at first and then introduced to
the details. High-level demonstrative evidence illustrating the big-picture concepts used in opening will
best set the stage for the detailed evidence shown in the case in chief.
In this age of constant content delivery on smart phones, tablets, computers and television - the
information presented also has to retain the jurors' attention and interest. The information needs to be
both informative and visually stimulating; enough so, that the content is learned and retained for
deliberation.
We often use these demonstrative evidence techniques in patent litigation trials. While the technical
evidence in these cases is not as dramatic as in television shows like CSI, it can often be shown to the
jury in a way that appeals to their common sense or their sense of justice.
For example, below we created demonstrative evidence to show how liquid crystal displays (LCDs),
commonly used in televisions, computer monitors, and many other applications, are designed to function.
The various layers, including glass layers, liquid crystal, film, and others come together in a brief
presentation to create an LCD.
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In this demonstrative evidence, below, we showed how a transistor works. We use analogy to indicate
that a transistor is like a light switch. When it is turned on, electricity flows, and when it is turned off,
electricity does not flow.
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Here, below, we explained a metal-oxide-semiconductor field-effect transistor (MOSFET) to a jury. We

used a frequent analogy, comparing the flow of electrons to the flow of water through pipes. This type of
transistor is able to divert the flow of electrons, just like a pipe valve diverts water into the ground.
However, occasionally the diverted water can cause problems such as leaky basements; similarly, the
jury can understand that diverted electrons can also cause problems.
In all of these cases, the jurors need to understand the technology before they can rule on the factual
issues before them. Did a particular companys new version of an LCD infringe on a previous type of
LCD? Was a specific transistor identical for all purposes with an earlier transistor? A fully informed jury
will come to the right decision.
High-quality demonstrative evidence is a powerful weapon in the arsonal of the modern litigator. Please
see other demonstrative evidence resources on our site below:
Demonstrative Evidence: The 4 Types of Animation Used at Trial

Demonstrative Evidence: Use in Patent Cases
Demonstrative Evidence: Use in Environmental Cases
Demonstrative Evidence: Use in Aviation Cases
Demonstrative Evidence and Information Design
Demonstrative Evidence in Pharma Cases
Scale Models as Demonstrative Evidence
Demonstrative Evidence Examples by Subject Area
Chosing the Right Colors for Your Demonstrative Evidence
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Courtroom Exhibits: Analogies and

Metaphors as Persuasion Devices
Since most complex trials deal with issues and subjects that are well outside the ordinary persons
experience, a trial lawyers job, and by extension that of a litigation consultant, is to help the jurors
understand these topics. One of the best ways of doing this is by using analogy and metaphor courtroom
exhibits in other words, by showing how the complicated scientific or legal concepts in the trial are
similar to things that a juror sees every day.
A metaphor is defined as a figure of speech that uses one thing to mean another and makes a
comparison between the two. An analogy is defined as a logical argument that shows how two things are
alike by pointing out shared characteristics, with the goal of showing that if two things are similar in some
ways, they are similar in other ways as well.
In the presentation of evidence with courtroom exhibits, metaphor and analogy are used together to
achieve a result that the jurors understand a concept that might have been foreign to them. For
example, a lawyer might tell the jury, The stock market is a supermarket. Well, the stock market isnt
literally a supermarket, so that is a metaphor; it uses the term supermarket to refer to the stock market.
Then a courtroom exhibit could point out the points of similarity between a supermarket and the stock
market, with the result that the jury would think of the stock market as a market and would treat events in
the trial that occurred in the market as if they occurred in the market.
Here are some metaphors and analogies that we have used and that have been successful:
To show that a patent must be precisely and narrowly defined, we used the courtroom exhibit (below) that
compares a patent with a piece of land whose boundaries are precisely stated. Just as a jury would think
theres something amiss with a property whose boundaries are unclear, they would think the same of an
ill-defined patent.
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We made an analogy in the courtroom exhibit (below) between a data CD and a legal pad. Information
can be written on the CD, erased from it, or recovered from it just as if it were written in pencil on a legal
pad. In effect, the CD is, metaphorically, a legal pad.
In explaining a data transfer controller patent (below), we analogized it to a highway. Just as automobiles
merge onto a highway, data signals are transferred by the controller from the local bus to the remote
bus.
In showing that a nuclear power company incurs storage costs, including direct and indirect costs, we
made an analogy with an automobile repair shop (below), which may need to store unused oil if it is not
picked up.
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In depicting a sequence of events leading to a home explosion from a gas leak, we made an analogy to a
ticking time bomb. In this courtroom exhibit, the metaphor is a visual one, as the sequence of events
(below) is wrapped around dynamite sticks.
Finally, when we needed to show the distinction between drying an object by forced air versus radiant
heat, we made the visual analogy to someone drying her hair (below). Either process would dry hair, but
they are different processes.
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Experienced litigators frequently tell us that they avoid using analogies, because the analogy might be
"flipped" and used against them by opposing counsel. In our experience, 1) this almost never happens;
2) when opposing counsel attempts it, the judge or jury can usually see through the attempt and it carries
little weight; and 3) by using courtroom exhibits to depict the analogy or metaphor, opposing counsel's
ability to change its meaning is much more limited.
Finally, as far as discovering the best and most effective analogy/metaphor for your courtroom exhibits,
we recommend one of two approaches. Either, 1) conduct a mock trial and listen to what the mock jurors
come up with; or 2) work with your litigation consultants to choose several analogies and test them with a
lay audience in a mock trial setting or test them through conversations with people unfamiliar with the
case.
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Courtroom Graphics in Labor and

Employment Cases
Labor law is a highly diverse and complex area. It can involve everything from claims for overtime pay
tocomputer fraud and abuse act cases (CFAA) involving swindling employees to trials involving the
allegedly illegal firing of an employee to complicated pension benefits issues. As labor and employment
cases get more complex, the use of computer graphics during trial is also on the rise.
A recent description of an academic program in labor and employment studies notes that the field of
labor and employment law has never been more dynamic and challenging than it is at the beginning of
the 21st century. Over the past forty years, sweeping changes in the interplay between the American
work place and the law have affected the everyday lives of nearly all members of society.
Labor cases often go to trial these days, and especially in cases that involve large numbers of
employees, lawyers on both sides of a labor law case will often find courtroom graphics extremely useful
to show trends, patterns, events that took place over a long period of time, or the real-life impact of a
companys policy or practice.
For example, overtime cases involving hundreds or thousands of employees are finding their way to
court. These usually involve summarizing lots of wage and hour data on just a few courtroom graphics.
This is what happened in this PowerPoint set of scenarios (below) involving a companys employees and
the hours that they worked over a period of years.
In an unusual labor law case involving federal government lawyers as employees, we helped a law firm
establish a class of U.S. Department of Justice employees who were unlawfully denied pay for millions of
hours of overtime pay. A judge in the U.S. Court of Federal Claims found that the highest officials of DOJ
knew that the employees were working overtime and maintained two sets of books one to include the
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overtime and one to exclude it. This was the first-ever class action web site that facilitated online opting
in, and we designed the website.
In another series of courtroom graphics (below), we showed graphically how a seemingly complex
special-employer fund worked, with employers and employees making contributions and funds being
withdrawn throughout the year. We used financial metaphors that any juror would understand, such as
checkbooks and piggy banks, to illustrate the concepts. We used a funnel to show the number of
employees who started out eligible for the retirement benefits and then the number who remained eligible
after other qualifying criteria were used.
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Similar to securities cases, labor and employment litigation has lagged other types of litigation (e.g.
patent litigation and antitrust litigation) in the adoption of courtroom graphics. Now that labor cases are no
longer a simple battle of he said, she said and computer forensics are routinely revealing playing a larger
role, it is essential to use courtroom graphics to help a jury understand and appreciate your client's
position.
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Banking Litigation Courtroom Presentations

We have have created courtroom presentations in banking cases almost since our very beginning nearly
17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001
dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial
crisis, we have helped jurors understand complicated financial concepts that are at the heart of most
banking litigation.
We have discussed earlier this year how a good trial consultant can make complex financial concepts
comprehensible to jurors by using courtroom presentations that relate to a jurors basic understanding of
life and personal experience. See our discussions of collateralized debt obligations and of securities
litigation.
The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all
jurors have bank accounts and have used ATMs, they have a basic sense of what banks do. So it often
is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM
networks, that they sell profitable investment products to clients, or that they manage and move large
sums of money. What is more difficult is explaining the details of how these things work.
In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank
far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags
a basic concept that any juror can follow to make an indelible impression on the jurors.
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In another very straightforward courtroom presentation graphic, we showed people sitting around a
conference table as a partner in a major accounting firm told them about a highly questionable tax shelter
that the firm was marketing. The shady characters are shown in shadow to emphasize the dubious
nature of what they are doing.
In another courtroom presentation illustration for the same case, we portrayed this complicated financial
transaction with an illustrated flow chart with seven steps, beginning with Taxpayer realized Capital
Gain and ending with Taxpayer Reports Loss to IRS. Even if a juror does not fully understand the
transaction on the same level as those who devised it, he or she certainly understands that somehow a
Capital Gain was transformed into a Loss for the IRS. The juror has paid taxes and has never been
able to convert a gain into a loss, we can be assured.
We also graphically portrayed how a worldwide ATM network functions. At the bottom of the courtroom
presentation chart are the individual bank customers, who are faced with the possibility of paying a
foreign fee and a surcharge.
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Finally, for litigation involving the BCCI bank scandal of the 1980s, we created a similar chart that showed
the flow of money from various entities in that case to BCCI. This case represented our first billion dollar
win. We've had hundreds since.
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Perfecting the Patent Tutorial for Your Judge

U.S. district court judges often lack the scientific or engineering background to fully understand the issues
in highly technical patent cases without outside assistance. And ever since the Supreme
Courts Markman ruling in 1996 finding that claim construction the interpretation of the words of a
patent claim is a task given over to the judge, it has been more important than ever for judges to get a
solid working knowledge of the subject matter of a case.
Judges now routinely convene so-called Markman hearings, also known as claim construction hearings,
before trial to help them in their task of claim construction, which is at the core of many patent disputes.
Many patent lawyers say the Markman hearing has become second in importance only to the trial itself.
In a Markman hearing, judges must resolve all the disputes about the interpretation of a patent and must
construe the claims for trial. The Markman hearing is therefore a key opportunity for both parties to guide
the judge through the thicket of the evidence and to help him or her understand the case.
There are a number of ways to give the judge the needed guidance. One of them is a patent tutorial,
which is generally presented months or weeks before the Markman hearing, in the form of a 30-minute
factual documentary presentation that explains the technology. Typically, each side is given the chance
to create a tutorial, which must stick to the facts and must not be argumentative. The tutorial can be
presented either live, usually using a combination of PowerPoint and Trial Director, or as a DVD with a
voice-over.
As Vincent P. Kovalick of the Finnegan Henderson firm wrote in China IP News in October 2009, Often
judges will request a brief tutorial on the technology of the patent either before or in conjunction with
theMarkman hearing. This is a great opportunity to stage your case in your favor. Lawyers often hire
graphics consultants to help create insightful and persuasive graphical animations and tutorials for the
judge. This is costly, but it is money well spent as most U.S. judges do not have technical backgrounds.
Indeed, the use of Markman hearings is expanding in the courts and in administrative hearings. Judge
Davis in EDTX is holding Markman hearings early in a case, so-called mini-Markmans, in an effort to
resolve cases more efficiently. In the International Trade Commission (ITC), Markman hearings were
introduced in 2009. Patent tutorials are used in many of these cases as well, so their use is also on the
rise.
At A2L Consulting, we have produced many such patent tutorials. Below are several examples of patent
tutorials for judges. Each is designed to provide an overview of the technology, the prior art and the
patents involved. Each includes just a hint of advocacy.
The patent tutorial presentation below was presented on DVD in the In re Katz Interactive Call
Processing Patent Litigation MDL. It provides an overview of call processing and call center technology
and is structured so that the judge or clerk can view portions that are important to them whether an
overview, prior art or patents in issue.
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The Katz MDL Patent Tutorial
The below litigation PowerPoint, used as a patent tutorial, demonstrates the workings of an optical disc
drive, using the analogies of writing and erasing on a legal pad to show the concepts of data storage,
erasure, and retrieval. With clear graphical icons, it also shows the technical problems that the inventors
of an optical disc drive had faced and the patented solutions that they came up with to solve them.
PowerPoint Patent Tutorial
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The above patent tutorial shows graphically the way in which a doctors prescriptions for aspirin and
Lipitor are translated into a hospital picking machine that automatically selects and removes the
medicines for the patient.
Flash-Based Patent Tutorial (Pre-Markman)
With careful planning and attention to detail, even the most complex technology can be explained to a
judge unfamiliar with that particular technology. The use of litigation graphics and either a voice over or in
combination with a live presenter makes this job managable.
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Litigation Graphics in White Collar Cases

White-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use
of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or
products liability.
However, we are seeing more white-collar work at A2L Consulting than ever before. It seems that
defense lawyers are realizing that these days, many federal criminal laws, and alleged violations thereof,
can be just as complex as a patent dispute or a commercial case.
Our white-collar criminal work usually involves helping an individual accused of a crime avoid indictment
or in aiding in the defense at trial. More often than not, the allegations relate to some financial fraud and
our work over the years, either for the prosecution or defense, has involved WorldCom, Enron,
Celebrities, Polititions and even Usama Bin Laden (our UBL-related work was on the prosecution side).
In a fascinating article published last year in a legal periodical, Kerri Ruttenberg, a litigation partner at
Jones Day, summarized a white-collar criminal case in which she used litigation graphics to illustrate the
complex issues:
I often use a flow chart or timeline to condense large amounts of testimony or other evidence into a
single visual exhibit to facilitate the jury's assimilation of that information. I build the chart or
timeline gradually in front of the jury to control the jurors' intake of the information, and I use other
design elements to reinforce key themes. For instance, during a complex white collar trial in
federal court that lasted nearly four months, the evidence established that three individuals took
many actions to further an accounting fraud. But my client had no knowledge of and did not
participate in those activities, despite the government's allegations to the contrary. I designed the
closing argument so that all of the visuals distinguished between my client (with blue slides), and
the other individuals (with red slides). Later in the closing, a timeline was an effective tool for
assimilating all of the incidents alleged by the government, and the blue and the red came together
to graphically reinforce a key defense theme - that others (in red) consistently took unlawful
actions while my client (in blue) was engaged elsewhere. Even if the jurors failed to remember
each incident depicted on the timeline, they would recall the red and blue distinction and therefore
would recall this important, overarching defense theme.
Ruttenberg also wrote that she uses high technology when needed but that she found a low-tech solution
helpful in a white-collar case when a surveillance video was at issue:
I tested the video using a laptop, projector and large screen, but the image was too dark. So, for
my closing argument, I abandoned technology entirely and instead used a large foam board to
display stills from the videos arranged like a film strip. The images were clear and bright, and I held
them up for the jury as I walked from one end of the jury box to the other, pointing out the
important details. The jurors had a great view and were clearly engaged in the presentation,
leaning forward and taking notes.
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Our litigation graphics experience has been similar in white collar cases. At A2L, when a celebrity was
accused of a crime, we sprung into action working 24/7 to arrange a team of artists who could help
demonstrate to prosecutors, through illustration and through a group of posed actors, that the alleged
crime could not have occurred as described.
In a fraud case, working for the prosecution, we developed litigation graphics, such as the PowerPoint
closing below that incorporated several classic demonstrative elements cleverly into one chart. In effect,
it is a players chart, a timeline and an elements/verdict form demonstrative exhibit all in one litigation
graphic.
In another case where we assisted in the defense of a public official, we used a common technique
during closing litigation graphics to show how many counts could not be proved and also emphasized the
standard of proof.
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Recall always the fundamental reason that litigation graphics emerged as an industry 25 years ago.
Almost two-thirds of the population prefers to take in information visually, and on average, only 2 jurors in
a 12 person jury prefer to learn by listening. If you are not supplementing a well crafted argument with
litigation graphics that are more than just words on a slide, you are likely to be misunderstood by most
jurors and many judges.
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3D Printing to Change Courtroom

Demonstrative Evidence
At first it sounds like something out of science fiction, but
3D printing has arrived and it can be very helpful to the
litigator and litigation consultant.
In 3D printing, which was invented in 2003, the user
either electronically sculpts or scans nearly any object
into the printer, using a computer-assisted design (CAD)
program to tinker with the color and shape of the object
when necessary. It can be a hand tool, an architectural
model, an auto part nearly anything within a
reasonable size limitation. The printer does the rest.
When you press print, the printer builds up a three-dimensional replica of the object gradually, by
adding material one layer at a time in plastic or metal. In a short time, you have a new solid object in your
hand. It is hard to believe, but this process creates usable, functional objects. A tool such as an
adjustable wrench can be built on this type of printer, using an existing wrench or a 3D model as a
template.
While futurists are already speculating on whether this technology, once its price is reduced, will
revolutionize manufacturing or even become the basis for a new type of industrial revolution, we are
already planning on using it for trial exhibits in the courtroom.
At A2L Consulting, we are able to adapt this technology to offer a new option for demonstrative evidence.
We can create miniature scale models of buildings in a construction case or larger models of tiny parts
that can be at issue in a patent case. Previously, these types of replicas had to be sculpted by hand by
artisans a much more lengthy and expensive process.
In a case involving medical malpractice, a 3D printer can create a model of the body part in question,
showing the damage or injury. A good example would be a 3D model of a spinal cord injury, which can
be built up from a 3D medical image.
The cost of these printers is already beginning to come down, so we expect that their use will only
expand in the coming decades. We are one of the first trial exhibit providers to offer this technology.
As is always true in the trial technology industry, anything that helps a juror understand or visualize the
issues at trial is extremely helpful. Many jurors are visual learners and will naturally gravitate towards a
3D object during their deliberations, since it tells a story for them.
The short video below will give you a good idea of how this technology can be used. A2L Consulting has
the ability to perform 3D printing operations for litigation in most major cities.
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Courtroom Graphics in Mining Cases (e.g.

Coal, Gold, Copper, Uranium)
Because of the continuing high value to society of minerals that are mined from the earth, mining
litigation, when it occurs, often involves very high stakes. This is all the more true in our high-tech era, in
which a wide variety of minerals have found new, very valuable uses in cutting-edge scientific and
industrial applications.
For example, one little-known rare earth metallic element, dysprosium, is now used in laser materials,
commercial lighting, control rods in nuclear reactors, hard disks, drive motors for hybrid electric vehicles,
and high-precision fuel injectors. The vast majority of jurors have never heard of this element, whose
continued availability is crucial to the nations economic well-being.
When A2L is involved in mining litigation, the case can involve a dispute over mining technology, a
conflict over the value of a mined material, a dispute about how valuable minerals from the mining
operation will be distributed according to a contract, or an environmental dispute usually involving mine
waste such as wastewater or tailings.
Often these cases are tried in courtrooms where the jury pool is very far removed from the concepts of
mining and needs to be educated about those basic concepts.
For example, tailings are the materials left over in a mine after the process of separating the valuable
fraction of the ore from the uneconomic fraction. To a population of a mining town, their characteristics
are well known; an urban jury, however, will require considerable education about how tailings are
produced and what their environmental risks may be.
A 2002 report, Stewardship of Tailings Facilities[pdf], concluded that tailings storage facilities typically
represent the most significant environmental liability associated with mining operations. They have been
in the news frequently in recent years for unfortunate reasons, as a result of a series of well-publicized
failures subjected to rapid and widespread reporting in the media. These recent failures, together with
previous ones, have put the mining industry under increasing pressure and scrutiny in regard to its
environmental practices in general and the safety of tailings impoundments in particular. The industry is
often placed in a position where it needs to respond to that scrutiny.
Courtroom graphics are important to give juries a balanced view of the issues surrounding mining
operations issues that jurors know little about and that are subject to manipulation by interest groups
that see only one side of the issue.
A simple 2D animation, below, is used to show how the copper mining process works. This type of
animation is easy and inexpensive to produce and is convincing to a jury.
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Another animation, below, shows the way in which a company prepares a copper deposit for the process
of open-pit mining.
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The straightforward schematic diagram, below, illustrates different techniques that mining companies
can use for the treatment of mine waste water.
Another straightforward diagram, below, shows the way in which the coal that is produced by a mine is
allocated among the owners of the mine.
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As with any topic outside the normal experience of the average judge or juror, care must be taken to
explain enough for the fact-finder to allow them to make the right decision. Courtroom graphics, including
static charts, electronic exhibits and animations, make it possible to communicate a lot of complex
information quickly. In an era of increasingly efficient trials, the courtroom graphics are used, the more
time can be saved.
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Explaining a Complicated Process Using

Trial Graphics
In our work as trial graphics specialists, many cases
require us to prepare a demonstrative exhibit that
simplifies a complex process. This could be a scientific
or technical matter such as how environmental
remediation is conducted, how surgical mesh is used, or
how data backups are migrated, or it could be a
business or governmental matter such as how a form of
bond obligation is created and sold or how a
government contract is bid and awarded.
The key to making a successful process chart or flow
chart is to create a simple trial graphic that anyone can quickly understand. It does not have to spell out
every last detail of the science, technology, business concept, or governmental action involved; it merely
has to discuss it accurately and in a way that will help the judge or jury understand what is at issue in the
case.
Here are some examples of process chart trial graphics that we have used and that we thought were
effective.
In this video below, we use PowerPoint intellectual property graphics to explain how video playback and
freeze frames are handled through the use of tagging technology. This was a very valuable trial graphic
in a patent case.
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In the presentation below, we explain, in schematic form, the hydraulic fracturing (fracking) process that
is used to extract natural gas from rock. The presentation shows how far below the earths surface
fracking occurs and the industrys routine use of cement and steel casings to protect groundwater from
the tools and substances used in the fracking process.
In the presentation below, we show in graphic form the process in which collateralized debt obligations
are created by investment banks. Through the use of Prezi presentation software, we were able to make
this highly technical and complex matter comprehensible to a fact finder by introducing the concept of an
investment and then showing how CDOs are simply a type of investment.
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In the trial graphics, we explain the drug development process in the United States and the process for
regulatory approval of new drugs by the Food and Drug Administration. This PowerPoint demonstration
helped a jury understand the length of time that the process can take, why it can take so long to bring a
drug to market, and all the steps involved.
Below, we introduce a jury to the process of creating a FLIP (Foreign Leveraged Investment Program).
By numbering the steps in the process and creating arrows from the taxpayer to other entities, we were
able to show how this tax shelter unfolds.
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The PowerPoint trial graphics below, created for a patent trial, shows how a coal conversion process
occurs.
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3 Styles of Document Call-outs Used at Trial

Whenever a litigation team presents a
document in a graphic way to the jury or
other fact-finder at trial, there is an
occasion for a document call-out. A
document call-out is a term of art that
means taking a document that is in
evidence at trial and highlighting some
key portion of it for easy reading and to
draw the viewer's attention to the key
language.
There are three usual ways to perform a
document call-out: With trial presentation
software such as TrialDirector, with a
static exhibit with something highlighted,
and with a PowerPoint presentation.
Each of these techniques has its pluses and minuses, and within each of these options there are various
styles. Here is a summary of the pros and cons.
1. Within Trial Director, there are a variety of tools for creating document call-outs, either in advance or
live, on the fly. In this video, you can see the screen of one of our hot seat trial technicians as he makes
document call-outs on the fly during a televised arbitration. Here, certain key accounting figures are
highlighted through the use of color, the use of a moving cursor, and the use of a zooming-in technique to
make certain numbers more prominent.
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2. In a static exhibit, when used as the old-fashioned printed foam core trial exhibit board or on a slide,
the document call-out becomes quite powerful. In today's cases, where most exhibits are presented on
screen, a printed board of the key document in a case can be a great tool.
Further, sometimes the document call-out can provide something more. In the below document, the
message we wanted to convey to the jury was that the failure to follow procedures on the ground (to
STOP traffic) was what led to the accident, not air traffic control. The octagonal red area functions both
as a document call-out, to highlight the established policy on the ground when there is an incoming
helicopter, and also as a strong visual reminder that it was necessary to stop traffic and that this was not
done.
The call-out below emphasizes the crucial language of an insurance policy defining the important term
accident.
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3. In PowerPoint slides, there are various techniques for calling out document text culled from
various courtroom presentations. In this series of slides captured from a variety of PowerPoint
presentations, we illustrate a number of common document call-out techniques.
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The Best Ways to Use Calendars in Legal

Graphics
We have previously discussed how valuable timelines used as
legal graphics can be in the presentation of facts at trial. As
we have noted, most cases involve the placing of events along
some sort of time sequence, and timelines, if they are well
designed, can give jurors a straightforward introduction to the
facts of a case. In fact, we recently released an e-book
describing best practices for the use of timelines and legal
graphics at trial.
Like timelines, calendars are also an intuitive way to organize facts and events that occur in a time sequence.
In fact, they are even more intuitive because everyone is familiar with them and because they help everyone
organize information on a day-to-day basis. Calendars can be especially helpful at trial when there is a lot of
data that must be conveyed quickly and understandably, and when that data must be understood as a time
sequence. This could involve conversations, meetings, appointments, dates of official events (such as the
signing of a will or a contract), and the like.
In What You Didnt Learn In Law School About Trial Practice (2008), longtime Indiana trial lawyer Charles
Bruess wrote: In an employment discrimination case in which the defendant company maintained plaintiff was
discharged for excessive absenteeism, an issue was what days plaintiff worked or did not work. Counsel
brought large monthly calendars, placed them on an easel, and, as the witness testified as to the days worked
or not worked, the dates were marked accordingly on the calendars. The calendars were marked as exhibits
and were introduced into evidence.
Below, to cite another legal graphics example, we used a calendar to illustrate key dates in the RFP process
for a government contract, starting with the date on which the compressed RFP was issued by the Department
of Defense.
In this series of legal graphics we show, in a partnership dispute, the dates on which the defendant was in the
office and the dates on which he received calls or faxes from the plaintiff.
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In an employment case, we used this ordinary calendar legal graphic to illustrate the dates on which a plaintiff
took days off from work for various reasons. A simple color-coding technique made it easy for the jury to
understand the sequence.
Next, in a medical treatment calendar legal graphic, we showed the dates of key surgeries, office visits, and
hospital stays, again accompanied by a simple color-coding technique.
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Finally, we used a calendar legal graphic to show key dates in the development of an invention that was at
issue in a patent trial.
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5 Tips for Using TrialDirector and Trial

Technicians Effectively
Indata's Trial Director has become the dominant trial presentation specialty software, second only to
PowerPoint in courtroom use. It is a powerful tool that is available to trial lawyers and to litigation
consultants and represents the state of the art.
A trial lawyer has written: Trial Director is predominantly a program used for viewing documents,
photographs, videos, animations and other visual media from a computer. In my case, Trial Director
made sense for two reasons: first, as a document display mechanism for trial preparation and as a
reference tool; and second, during the litigation at the time of trial for "demonstrative" purposes. One of
the key features of Trial Director is its ability to project documents, photographs and other media to a
large monitor or screen for viewing by judge and or jury. A busy trial attorney will appreciate that
preparation in advance of trial is the key to success.
Here are the top five tips for the effective use of Trial Director from our 6 trial technicians or hot-seat
operators, who are so called because these people who run the software are responsible for what the
judge and jury see in the courtroom. One bad mistake -- and the credibility of the lawyer and case could
be called into question. This is a service area where perfection is a job requirement.
1. PREPARE ANNOTATIONS EARLY: When possible, make annotations in advance. In a jury trial,
it is always a good idea to ask the judge in advance about this.
2. DON'T LOOK TOO CANNED: On the other hand, always be prepared to do some things on the
fly to locate pieces of prior testimony or exhibits that will work well at the moment and couldnt
have been anticipated. This can help keep the jurys attention and ensure that the case doesnt
look canned but is developing before the jurys eyes.
3. ADVANCE CODING IS A PLUS: Coding a database in advance with Bates and exhibit numbers
can make it a breeze to find exhibits and documents when you need them.
4. PREP DEPO CLIPS WELL IN ADVANCE: Create video clips in advance to remove objections
and long pauses. Its very important to respect the jurors time and their public service rather than
bogging them down with slow-developing clips.
5. TRIAL TECHS ARE TRUSTED ADVISORS: Attorneys should see trial technicians the hot
seat operators as invaluable members of the team, not just as computer jocks or IT types. A
seasoned trial tech has been "in the room" many times before, probably more often than most
attorneys, and the trial techs experience should carry some weight. It doesn't hurt to ask their
advice.
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Making Good Use of Trial Director &

Demonstratives in an Arbitration
TrialDirector, a trial presentation software
package produced by InData, is an
indispensable aid to the presentation of
electronic and other evidence at trial. There is a
reason why this product has claimed the
majority of the market share for trial
presentation software for more than 10 years: It
can actually make it interesting for a jury or
other fact-finder to listen to a witness testify
about corporate balance sheets, long-ago
emails, and other documents that can be fatally
boring and lose the attention of the fact-finder.
At A2L Consulting, we have been using
TrialDirector to support our presentations and to help our clients win cases for more than a decade. The
combination of this software and a well-trained hot seat operator makes presentations interesting and
sprightly. We generally pair TrialDirector with PowerPoint, other specialty software, specially constructed
scale models, and the occasional printed large-format foam core trial board to put together a full trial
presentation. We use TrialDirector for more than half the cases we support.
For example, in the case of Railroad Development Corporation v. Republic of Guatemala, we worked with
the Railroad Development Corporation and with the international law firm of Greenberg Traurig to make
an arbitration case at the International Centre for Settlement of Investment Disputes, the leading
international arbitration institution devoted to investor-State dispute settlement. This was a two-week
arbitration.
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The video here shows how closely integrated the witnesss testimony is with the document that he is
describing (an excellent use of TrialDirector), as well as the use of a carefully designed PowerPoint to
show the status of the Guatemalan railroad at issue and the work that was done to improve that railroad.
Using Trial Director, our hot seat operator brings up documents in real time and highlights them in color
to point out the key aspects that we want to emphasize.
The video also briefly shows part of the opposing sides low-tech presentation (begins at 5:15), which is
based on sticky notes and a PowerPoint template that is not tailored to the case at hand. Our
presentation is much more likely to capture the attention of the fact finders in what otherwise might be
seen as a dry-as-dust case.
The basic point is that all cases benefit from the thoughtful presentation of evidence. The more
haphazard the presentation, the less credible the presenter will be. Our TrialDirector operators are
specifically trained in the use of that powerful software but the key to success for a trial technician is not
just the software savvy but also the ability to work on the fly, to suggest creative ways of presenting
evidence, and to work long hours for weeks at a time.
Below are some other resources about TrialDirector and Trial Technicians on our site:
Trial Director Related E-Book: 20 Questions to Ask Before Engaging a Trial Technician
TrialDirector Certified Trial Technicians: Request Pricing or Availability
Trial Technicians: A2L Articles Discussing Trial Technicians and Trial Director Generally
Using TrialDirector and Trial Technicians: Why We Know Technology Won't Make You Look Slick
Trial Technicians: What You Must Know Before Using One
Trial technicians using TrialDirector are normally responsible for the following at A2L:
creating a trial exhibit and document database before trial starts;

making deposition clips and syncing them with a transcript;
helping the litigation team to prepare witnesses to build their comfort with an electronic
presentation;
setting up a war room and electronic courtroom with trial presentation technology;
helping to finalize the case-in-chief and demonstrative evidence presentations;
running the trial presentation technology in the courtroom so any document is accessible instantly;
creating on-the-fly demonstrative evidence to be used with a witness on cross examination;
running the entire trial presentation using Trial Director;
Some additional trial technology, trial graphics and trial technician articles that you may find useful
include:
The iPad Friendly Courtroom - The View of Daniel Carey, a Seasoned Trial Technician
A2L's Trial Technicans and Trial Technology - Main Page
A2L Pioneers Fixed Price Contracts for Trial Technicians (as Animators at Law)
More Information About Trial Director in the Courtroom
5 Ways to Research Your Judge's Likes and Dislikes
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Courtroom Presentations in E-Discovery

Disputes
Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty
much supplanted the old-fashioned discovery of paper documents, the disputes have only become more
complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom
presentations for discovery dispute hearings.
In the past ten years, e-discovery consulting firms have come to dominate the litigation support field,
providing their expertise in a rapidly changing and highly technical field. That is not the only new
development in this field.
First, many law firms that are representing clients in document-heavy pieces of litigation have begun to
hire discovery counsel, law firms that specialize in discovery alone and dont promote their expertise in
other areas of law. One such firm says on its website that it devotes all of our resources to the
successful execution of document collections, reviews, and productions.
Second, many traditional law firms are setting up dedicated practice groups to address e-discovery and
records management issues. These lawyers primary job is to help the firms general litigators in dealing
with e-discovery issues that may come up.
Finally, as an excellent article by a K&L Gates partner points out, some companies have hired National
e-Discovery Counsel to handle e-discovery issues in all of their litigation matters nationally and/or
internationally.
As the article points out, these companies have several advantages: They have one firm that is fully up to
speed on their information systems; they have developed uniform practices and procedures for discovery;
and they can achieve some cost savings by reusing their databases.
Whoever the players are in a particular case, theres little doubt that the advent of e-discovery has
resulted in more discovery battles than there ever used to be.
That is where a courtroom presentation consultant can come in. Sometimes the consultants role is to
demonstrate what documents were missing and why sanctions are warranted. Sometimes the graphics
illustrate, to the contrary, that the matter in dispute is not large enough to warrant sanctions.
Dan Regard, leading testifying e-discovery expert and Managing Director of iDiscovery Solutions notes,
"we are often brought in by clients not only to understand a complex situation, but to help explain it to a
trier of fact. I prefer when we work with the courtroom presentation artists, because at the end of the day
our job is easier and the message is clearer."
The three courtroom presentation exhibits below were all used in pre-trial hearings after a discovery
dispute had erupted. Each of them uses a familiar analogy to show that only a small number of pages or
emails are at issue.
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In the first courtroom presentation graphic (below), we showed that the number of relevant emails is
equivalent to only 3.6 pages from the Encyclopedia Britannica.
In the second courtroom presentation graphic (below), we used tall stacks of paper to indicate that out of
8,000 pages, there were only 13 unique emails and attachments.
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In the third courtroom presentation trial graphic (below), we created a schematic of a pro football stadium
to show that if compared with the whole universe of documents, the ones that relate to Morgan Stanley
was only the equivalent of 114 spectators in the whole stadium.
Courtroom presentations are a valuable weapon in discovery hearings. When done correctly, the right
trial graphics can help a litigator prevail in these ever more acrimonious disputes.
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New Study: A Graphically Immersive Trial

Presentation Works Best
A recent study about the best use of litigation graphics during trial
reveals some new insights. This study was conducted by Persuasion
Strategies, a litigation consulting firm that is part of Holland & Hart, a
law firm.
The study team was led by Ken Broda-Bahm, a leader in the art of
visual presentation in the courtroom. With a doctorate in speech
communication that emphasizes rhetoric and legal communication,
Dr. Broda-Bahm is a genuine expert in jury consulting.
In the Visual Persuasion Study, Dr. Broda-Bahm and his team conducted extensive research about the
best approach to trial presentation in the courtroom. Their experience, which remains the topic of
continued research, reveals that a graphically immersive approach to trial presentation gets the best
results with jurors.
In a project that compared various uses of graphics and their effects on potential jurors, Dr. Broda-Bahm
wrote, he and his team learned something very important: The occasional use of graphics is not
enough.
The study looked at 1375 mock jurors and tested five different ways of presenting a defense case: (1) no
litigation graphics; (2) flip chart graphics created live; (3) static graphics; (4) animation; and (5) an
immersion style of presentation in which animated and static graphics were in constant use.
The team found that in order to obtain the full benefits of visual persuasion, attorneys should be using a
continuous approach, giving the jury something to look at in a constant manner, at all times. Instead of
following the practice of most attorneys of only using the screen periodically to show a document
or image when a particular need presents itself, effective attorneys use graphic immersion -- an approach
relying on continuous imagery to reinforce all parts of the message. This approach turns out to be most
effective of all the graphic modes that were tested.
Graphic immersion, Dr. Broda-Bahms test results concluded, greatly enhanced positive juror response,
beyond the results that came from occasional use of static graphics or animation. It is possible that this
result springs from the fact that when something is both shown and told to jurors, they engage two
separate sensory processing areas of their brain the auditory cortex and the visual cortex -- thus
sharing the cognitive load and making it easy for the brain to process the information.
Dr. Broda-Bahm told me that the study has convinced him that attorneys should be using PowerPoint
throughout opening and closing and the same is true while experts are speaking.
We believe that as the disciplines of jury consulting and litigation graphics become increasingly
intertwined, more study is needed on what are the most effective techniques throughout the trial
presentation.
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Who Are the Best Demonstrative Evidence

Firms?
The National Law Journal is currently running a contest
entitled The Best of NLJ to select the top providers of
services to law firms nationwide. Everyone at A2L
Consulting and I would, of course, like your vote, but more
important than anything, please do vote.
Last year, A2L Consulting was voted the best demonstrative evidence provider in the Washington, D.C.,
area our home base.
We are hoping to win the national honor this year. Voting is open through March 31, 2012.
Im very excited about this contest not only because we were nominated, but also because it indicates
that the demonstrative evidence industry is fully understood and accepted in the legal community and is
here to stay.
Our type of service using psychology and technology of all varieties to help trial lawyers present
evidence in a clear and convincing way is barely 25 years old. When A2L Consulting opened its doors,
as Animators at Law, in 1995, we spent more time selling the need for our service than selling our firm.
Now, most large cases go to trial with at least two demonstrative evidence firms involved.
It turns out that it is quite difficult to make the complex simple. It takes time and expertise to do it well.
With firms like ours going to trial all the time far more frequently than even a top litigation law firm we
have a great deal of experience. As technology and change accelerate, cases have become more
complex, and the need for demonstrative evidence firms has never been greater.
It is really quite amazing what we do advise some of the nations best communicators about how to
communicate more effectively.
As a finalist in the NLJ competition, we are in good company with other national firms such as
TrialGraphix and DecisionQuest. We are proud to be in the same category as firms like these, which
helped create our industry. DOAR, formed in 1989, helped bring technology to courtrooms in the 1990s.
DecisionQuest popularized jury consulting on a national scale, and TrialGraphix helped give one element
of our service a name.
I believe our unique approach to litigation consulting, using visually oriented attorneys and former
litigators to lead our project teams, has profoundly improved the way top litigators try cases.
We would like your vote. Just go to https://www.surveymonkey.com/s/NLJBest2012, and
Fill in your name and other information.
Locate the question about the BEST DEMONSTRATIVE EVIDENCE PROVIDER. The 60 or so questions
are presented in random order.
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You may respond to the other questions as well but you need not do so. Then click through to the end of
the questionnaire to Done.
We hope that this contest is just another step in the recognition of A2L Consulting as an industry leader.
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5 Inspiring Information Design/Data

Visualization Sites for Lawyers
When a litigator engages a trial graphics consultant, he or she will most
likely be getting more than anticipated - an expert in information design.
Information design, a field that is less than 50 years old, has been defined
as a process that is concerned with transforming data into information,
making the complex easier to understand and to use. It is a rapidly growing
discipline that draws on typography, graphic design, applied linguistics,
applied psychology, applied ergonomics, computing, and other fields. It
emerged as a response to people's need to understand and use such things
as forms, legal documents, computer interfaces and technical information.
Less than 30 years ago, the parallel field of trial graphics emerged and
trial graphics specialists can learn a great deal from the art and science of
information design, and can contribute to the growth of that field as well.
After all, lawyers engage in information design and data visualization all the time, and demonstrative
evidence firms such as ours provide litigators with the skills and specialized resources to provide
information in a way that is not only easier to understand but also persuasive to a judge, jury, or other
fact-finder.
In the courtroom, of course, the demands on the provider of information design are even more intense
than in the normal situation, where the designer creates a map, chart, or similar graphic for travelers or
viewers to understand. In the courtroom, the stakes are higher: the fact finder must quickly and almost
intuitively come to an understanding of the subject matter and must find it convincing.
So its not surprising that the best demonstrative evidence firms look to some of the best information
design web sites and blogs for ideas and inspiration. Here's where the designers at A2L Consulting go
for inspiration:
1. Flowing Data is an excellent site with years worth of curated information design graphics including
one here to illustrate the relative odds of each team winning the NCAA mens basketball
tournament.
2. Cool Infographics shares a unique style of info graphics including how the iPad can replace any
number of other devices and actually save money for its users.
3. Information is Beautiful focuses on data visualization, often a difficult and important task in
litigation. Most will find this info graphic showing the true size of Africa surprising.
4. Information Aesthetics is best for viewers with an interest in "big data" visualizations like the entire
corporate history of GE via an interactive graphic. We often are tasked with describing decades of
corporate history, and a simplified version of this chart would be suitable for courtroom use.
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5. The New York Times is also an outstanding source of excellent data presentation. Here, the
designers present the Presidents proposed 2013 budget. In this fascinating graphic, they display
information about how Americans spend a typical day eating, sleeping, working, engaging in
recreation, and the like.
There is almost no limit to what creative designers can accomplish whether building a subway map or
an exhibit in a patent infringement case.
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Lists of Analogies, Metaphors and Idioms

for Lawyers
by Ken Lopez, Founder and CEO, A2L Consulting
The task of a trial lawyer is to convince a judge or jury to
believe in the truth of a clients case. However, in many
complex trials, the underlying facts are not as easily
understood by the fact-finder as they would be in, say, a
murder case or a traffic accident. A case, especially the type
of litigation that we are involved in, often turns on complex
issues of science, medicine,engineering, or some other
subject that jurors and many judges are not well versed in.
How does a lawyer move from the arcane to the everyday and get jurors to follow along? Enter the
metaphor, simile, or idiom.
We use these figures of speech all the time in conversation, often without realizing we are doing so.
Whenever we say we need to level the playing field or push the envelope or draw a line in the sand,
we are using a metaphor. When we say something is as dull as dishwater or as slow as molasses, we
are using a simile. When we tell a friend to break a leg for good luck, we are using an idiom.
Briefly, a metaphor is a figure of speech that uses one thing to refer to another as a means of making a
comparison between the two. A simile actually makes the comparison between two dissimilar things
directly with the use of the word like or as. An idiom is an expression that is more than the sum of its
parts (think raining cats and dogs or spill the beans); it is usually based on a metaphor, though the
metaphor may be a bit buried after centuries of use. These figures of speech have one thing in
common: They are all used as analogies, to compare one thing to another.
In a trial, a lawyer can use a metaphor to show the jury how something works or how an event occurred,
based on an analogy to another thing or process that jurors know well from their everyday lives. For
example, in an antitrust case, when describing how a group of competitors squeezed another company
out of the market by denying it the opportunity to buy a needed product, the lawyer might tell the jury that
the conspirators choked the life out of the other company as if they had denied it the air it needed to
breathe.
Ray Moses of the Center for Criminal Justice Advocacy, a Texas-based nonpartisan, grassroots training
resource that helps lawyers become competent criminal trial practitioners, writes well about analogies
and metaphors.
Jurors remember facts and concepts that are familiar to them or that can be analogized to familiar
subjects, Moses writes. Those who aspire to be effective communicators and persuaders must learn to
argue by analogy and to explain by stories. This is particularly true when we are seeking to clarify and tie
together complex facts, abstract ideas, or legal concepts. If facts or legal issues become
overcomplicated, jurors become overwhelmed. It is here that an appropriate analogy may assist the jury
in comprehending the import of the evidence that has been dished out during testimony, assessing the
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credibility of the sources of evidence, and/or understanding the application of law to facts that are found
to be true.
Below are a number of websites that are useful in finding the best analogy, metaphor, similie or idiom to
use in your case:
Metaphors & Similies

[pdf] A Downloadable Metaphor List
An interesting book for lawyers on the topic
A list of idioms
A second list of idioms
A third idiom list
A list of similies
Below are some additional resources on the A2L Consulting site:
Using Visual Metaphors and Analogies

Teaching Science to a Jury
Improving Storytelling Skills as a Lawyer
What others have had to say about this topic:
[pdf] Why Analogies Often Fail

Finding the right analogy for litigation
Analogies and the Courtroom
208
Demonstrative Evidence: Using Maps as

Courtroom Exhibits
Because maps are used by jurors constantly in their daily life
and because they are so frequently used to represent common
locations and processes, they are one of the most frequently
used and most effective types of demonstrative evidence.
Whenever something can be conveyed geographically, through
the use of space, it is worth considering the use of a map.
Even though maps dont always represent the highest and
newest technology, their importance cannot be
underestimated.
In the words of Ray Moses of the Center for Criminal Justice
Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in
becoming competent criminal trial practitioners: Visuals (graphics) such as time lines, charts,
illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your
client and yourself to learn how to incorporate visuals into your presentation.
We have used maps in any number of ways as demonstrative evidence to help make our clients cases
understandable to juries and judges. Here are a few of them.
The demonstrative exhibit below is a screen capture of a PowerPoint interactive trial presentation
developed to show that an area was not actually a wetland. Specific spots on the map are pegged to
portions of a video that show that there is no water channel in the affected area.
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The below animated demonstrative map is a screen capture of a PowerPoint interactive demonstration
developed to show how New York City gets its water supply. The demonstrative graphic successfully
combines the known geography of the New York State region with the actual flow of water from the
reservoirs.
The next demonstrative exhibit, below, is a screen capture of a PowerPoint trial presentation developed
to show how a conflict of interest was vetted in a government contracting False Claims Act dispute. This
map is an excellent example of demonstrative evidence. It shows the entire United States and the
locations in which vetting officers were located.
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The final piece of demonstrative evidence is a map of the United States showing where various air taxi
helicopter accidents occurred, to show that they are a very small percentage of all general aviation
accidents.
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12 Questions to Ask When Hiring a Trial

Graphics Consultant
The choice of a trial graphics firm is one of the most important
decisions that a trial lawyer can make. Since experts widely agree
that about two-thirds of jurors and many judges prefer to learn
visually, it can literally make the difference between winning and
losing your case. However, many lawyers still use the wrong
approach to the selection of a trial graphics consultant.
For example, they may choose a provider based on familiarity (I
know someone who does graphics . . .), price (the client has a tight
budget . . . ), or proximity (theyre right around the corner . . . ).
There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the
hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to
someone who has specialized knowledge and experience that you may not.
You would hire an electrical engineering expert witness to discuss the workings of a patented device.
Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to
create effective trial graphics for your case.
Here are 12 questions that you should ask any trial graphics provider that you are considering. The
answers to these questions will, in all probability, lead you to the right decision.
1. What kind of experience does the trial graphics consultant have in providing trial graphics
consulting for cases like yours? (i.e. Can you show me examples? Cite case names? Provide
litigator references?)
2. Since the attorneys will be working with the provider on a daily or hourly basis, how easy
will the trial graphics providers employees be to work with? (i.e. How do you feel about
working weekends? How do I get in touch with you after hours? Does the provider's team have
their mobile phone number on their business card?)
3. How responsive will the trial graphics provider be to unexpected developments in the case
that may require quick turn-around time? (i.e. How have they rapidly scaled a project team?
Can you provide specific examples?)
4. Is the trial graphics provider ready to work long hours at night or on weekends to help the
attorneys? (i.e. Tell me of three instances where you have had to do this? Who can I call to verify
these events?)
212
5. How familiar are the trial graphics providers employees with the concepts behind your
case and with the basics of courtroom procedure and evidence? (i.e. Some firms are run by
lawyers and Ph.Ds while others are run by high school grads or computer scientists. Choose the
right provider for your case.)
6. Is the trial graphics provider able to suggest creative visual approaches to your case
rather than merely accepting your initial thoughts and putting those into practice? (i.e. Will
the provider be a true partner in your trial effort or merely an order-taker? Can you provide
references who can speak to this?)
7. Who will lead the project on the trial graphics consultant's team? (i.e. Will I have more than
one point of contact to deal with? How many projects has the project lead managed previously?
How will the provider update our team on critical path requirements, key deadlines and issues
that could put timing in jeopardy?)
8. Will the trial graphics provider be honest enough to be able to step back and provide an
outside perspective on your case and its strengths and weaknesses? (i.e. What is the
provider's value-add? How might the provider identify potential additional case themes? Are
attorneys involved in the creative process throughout the project lifecycle?)
9. Is the trial graphics provider able to discuss the cost of a project from the outset as well as
the factors that may increase or decrease that cost as time goes on? (i.e. Will the firm
consider a fixed price arrangement? If not, why not? Remember, [if] they provide these services
all the time, they should be experienced enough to accurately estimate average costs).
10. Will the trial graphics consultant keep you up to date on changes in the scope of the
project that may affect the budget? (i.e. Can they talk comfortably about money? Do they know
how to keep you out of hot-water with your client?)
11. How long has the firm provided trial graphics services? (i.e. Are they an overseas ediscovery provider masquerading as a trial graphics consulting firm? Will your client's confidential
information be sent to India?)
12. Are the references the trial graphics consultant provides - like you? (i.e. If the case involves
billions of dollars of toxic torts, is the trial graphics consultant providing references to high-profile
but low-dollar disputes or vice versa?)
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Sample One-Year Trial Prep Calendar for

High Stakes Cases
A high percentage of the work that we do at A2L Consulting is

on cases with billions at stake. Over the last 18 years, we've
seen trial teams prepare well and we've seen trial teams
caught underprepared, often because they believed that
settlement was imminent and that there was little or no need
for trial preparation.
So that no one gets caught without being prepared, heres a
sample calendar that lays out a trial preparation plan for mock
trials, the creation of litigation graphics, the planning and
deployment of trial technology, witness preparation and
informal run-throughs on the eve of trial.
Not every case warrants this level of preparation. However if
your client is in a bet-the-company situation, if there is $20
million or more at stake or if there is a threat of pattern
litigation, then this level of preparation is entirely appropriate if not required.
Gone are the days when a trial lawyer wings his or her way
through a trial and tries to use charm to win a case. Juries and
judges expect a lot more these days from attorneys than they
did 10 years ago. They want to see a well-rehearsed show
with evidence nicely teed up for decision-making, witnesses who are well prepared, and a lawyer who
has planned everything out, including the technology. Anything less, and they'll likely punish your client
for it on some level.
The best litigators that I see prepare a lot with the support of a client. Often this involves several rounds
of full-scale mock trials. However, the most important thing a client can do is create an environment
where the trial attorney feels that he or she can make mistakes. As they say in show biz, bad rehearsal,
great performance.
In the sample calendar below, we show a year's worth of preparation for a hypothetical 2-week
December trial. We use our Micro-Mock service for an early case assessment and to help clarify the
likely trial themes and story. Preparation of litigation graphics starts early to allow for several rounds of
testing, refinement and approval over the course of the year. Two mock-trial exercises are planned with
three or four panels of jurors per exercise. Witnesses are thoroughly prepped and trial technology for
both the war room and the courtroom are planned and set up. Finally, a series of run-throughs are
scheduled just prior to trial to make sure that trial counsel, the trial technician, witnesses and the trial
technology are operating like a well-oiled machine.
214
What we are describing below is a general sense of how this should work, using a sample calendar.
There is considerable variability in the investment required, both in terms of time and money, depending
on how many witnesses there will be, how long a mock trial, how many graphics there are, how long the
trial is, and other variables.
Click here or on the image above to download a larger PDF version of the sample trial preparation oneyear calendar for a two-week trial in a high-stakes case.
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Contacting A2L Consulting

We invite you to contact us for any reason using the information below.
Nina Doherty
National Director, Business Development
Doherty@A2LC.com
800.337.7697 x121
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Jury Consulting | Litigation Graphics | Trial Technology

Using & Creating Litigation Graphics to Persuade

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Learn About Nuclear Power Plants Through Litigation Graphics ................................................................................................................. 70

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Using & Creating Litigation Graphics to Persuade

Courtroom Exhibits: Analogies and Metaphors as Persuasion Devices ..................................................................................................... 161

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Using & Creating Litigation Graphics to Persuade

Introduction to A2L Consulting

Litigation Consulting Services

Printed Large Format

2-D and 3-D Animation

Mock Trials, Focus Groups and Jury Consulting

Opening & Closing Statements

Trial Technicians, Courtroom Set-Up and Hot-seat Personnel

Equipment Rental and Setup

Scanning and Coding

Digitally Convert Paper Briefs

Citations and Hyper-Linking

Provide DVD, Flash Drive or iPad

www.A2LC.com | 800.337.7697 | www.LitigationConsultingReport.com

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Using & Creating Litigation Graphics to Persuade

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